Theis v. Viewsonic Corporation

Filing 14

MEMORANDUM ORDER Granting 7 MOTION to Dismiss, filed by Viewsonic Corporation. Signed by Judge Richard G. Andrews on 4/16/2013. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ROBERT THEIS, individually and on
behalf of all other similarly situated,
Plaintiff,
v.
VIEWSONIC CORPORATION,
Defendant.

Civil Action No. 12-1569-RGA

MEMORANDUM ORDER
Having reviewed Defendant's Motion to Dismiss (D.I. 7), associated papers (D.I. 8-12),
and oral argument on April12, 2013, it is ORDERED that Defendant's Motion (D.I. 7) is
GRANTED as follows:
1.

With regard to Plaintiffs Breach oflmplied Warranty claim (Count II), Plaintiff

agreed at oral argument that this claim is limited to a breach of the implied warranty of
merchantability. The elements of this claim are: "(1) that a merchant sold the goods; (2) which
were defective at the time of sale; (3) causing injury to the ultimate consumer; (4) the
proximate cause of which was the defective nature of the goods; and (5) that the seller received

notice of the injury." 1 Reybold Group, Inc. v. Chemprobe Techs., Inc., 721 A.2d 1267, 1269
(Del. 1998) (emphasis added). "The injury" of which the seller must have notice is the injury to
the ultimate consumer plaintiff. See id.; Fatovic v. Chrysler Corp., 2003 WL 21481012, *5 (Del.
Super. Feb. 28, 2003). Plaintiff alleges that Defendant had knowledge of the alleged defect due

1

The notice requirement exists for a reason. See JAMES WlllTE & ROBERT SUMMERS,
UNIFORM COMMERCIAL CODE, § 12.10 (61h ed. 201 0) (discussing § 2-607, and providing that the
"most important reason for requiring notice is to enable the seller to make adjustments or
replacements or to suggest opportunities for cure to the end of minimizing the buyer's loss and
reducing the seller's own liability to the buyer.").
1

I

I
i
to complaints by other consumers to Defendant and on the Internet, not that Plaintiff gave
Defendant notice of the injury to Defendant. See (D.I. 1, ~ 13). Plaintiff failed to plead that he
gave Defendant reasonable (or, indeed, any) notice of the alleged breach of implied warranty and
injury to Plaintiff. At oral argument, Plaintiff stated he could not plead that he gave Defendant
notice of his own injury. Count II is dismissed. See Ohoopee Prod. Cr. Ass 'n v. Aspinwall, 358
S.E.2d 884, 885 (Ga. App. 1987).

~

2.

Plaintiffs Violation of Magnuson-Moss Warranty Act claim (Count III) expressly

depends upon his breach of implied warranty claim. (D.I. 1, ~55; D.I. 10 at 9). Since that claim
has been dismissed, Count III must also be dismissed. See Cooper v. Samsung Electronics Am.,
Inc., 2008 WL 4513924, *6 (D.N.J. 2008).

3.

With regard to Plaintiffs Delaware Consumer Fraud Act claim (Count V),

I

!

I
l
l

Plaintiffs allegations fail to meet the heightened pleading standard under FED. R. CIV. P. 9(b) for
claims brought by a private citizen. See Homsey v. Vigilant Ins. Co., 496 F.Supp.2d 433, 438-39
(D. Del. 2007); Sammons v. Hartford Underwriters Ins. Co., 2010 WL 1267222, *6 (Del. Super.
Apr. 1, 2010). "[T]he circumstances ofthe alleged fraud [must be] plead[ed] sufficiently 'to
place defendants on notice of the precise misconduct with which they are charged, and to
safeguard defendants against spurious charges of immoral and fraudulent behavior."' Homsey,
496 F.Supp.2d at 439 (quoting Seville Indus. Machinery Corp. v. Southmost Machinery Corp.,
742 F.2d 786, 791 (3d Cir. 1984)). Plaintiff has alleged only that "Defendant has violated [the
Consumer Fraud Act] through concealment, suppression, and omission of a material fact- the
Defect - with the intent that others - Plaintiff and Class - rely upon such concealment,
suppression, or omission of material fact, in connection with the sale of the Defective Monitors."
2

I

I

I

(D.I. 1, ,-[ 66). This falls far short of identifying any precise misconduct by Defendant. Count V
is dismissed for falling short ofRule 9(b)'s pleading standard.
4.

Plaintiffs Delaware Consumer Fraud Act claim also fails as a matter oflaw.

Section 2522 of the Delaware Consumer Fraud Act provides that "[t]he purpose of this
subchapter shall be to protect consumers and legitimate business enterprises from unfair or
deceptive merchandising practices in the conduct of any trade of commerce in part or wholly
within this State." "Relief, therefore, can be granted under the Act only as to those unlawful
practices occurring or performed partly or wholly within Delaware." Benning v. WIT Capital
Group, Inc., 2001 WL 38781, *2 (Del. Super. Jan. 10, 2001), reversed on other grounds, 792
A.2d 188 (Del. 2001 ). Defendant's status as a Delaware corporation may give this Court
personal jurisdiction over the Defendant, but it is by itself insufficient to allow Plaintiff to state a
claim under the Delaware Consumer Fraud Act for an act occurring outside of Delaware. There
is no allegation that a Delaware consumer was deceived by Defendant's alleged practices, or of
any other Delaware connection. See id. Nor can there be; per Plaintiffs counsel at oral
argument, Plaintiff is a California consumer who purchased Defendant's monitor in California.
Count V fails as a matter of law.
5.

With regard to Plaintiffs Unjust Enrichment and Restitution claim (Count VI), at

oral argument Plaintiff clarified that the claim itself is for unjust enrichment, while restitution is
a requested remedy. Plaintiff is precluded from prevailing on his claim for unjust enrichment
because a binding contract exists between the parties that addresses the particular subject matter:
the user manual with its warranties, which Plaintiff agrees is a contract between the parties. See
Palese v. Delaware State Lottery Office, 2006 WL 1875915, *5 (Del. Ch. 2006); (D.I. 10 at 4, 9);
3

I

•

(D.I. 8, Ex. A). Plaintiff's argument that unjust enrichment picks up where the expired
warranties leave off ignores the purpose of unjust enrichment and of warranties. "Courts
developed unjust enrichment, or quasi -contract, as a theory of recovery to remedy the absence of
a formal contract. A party cannot seek recovery under an unjust enrichment theory if a contract is
the measure ofthe plaintiffs right." Palese, 2006 WL 1875915, at *5. The warranties here
provide the contracted-for measure of Plaintiff's right; Plaintiff cannot bring an unjust
enrichment claim after the warranties' expiration to expand his right. Count VI is dismissed.
6.

Plaintiff conceded dismissal of its Breach of Express Warranty claim (Count I) and

Delaware Uniform Deceptive Trade Practices Act claim (Count IV). (D.I. 10 at 6, 12). The
remainder ofPlaintiff's claims fail either as a matter of law or due to irreparable pleading
defects. Thus, granting leave to amend would be futile. All of Plaintiff's claims are
DISMISSED WITH PREJUDICE.
IT IS ORDERED that the clerk of court is directed to enter judgment in favor of

Defendant.

~

Entered this ~ey of April, 2013.

4