Arcelik, A.S v. E.I. DuPont de Nemours and Company

Filing 36

MEMORANDUM OPINION re #28 motion to dismiss. Signed by Judge Leonard P. Stark on 3/20/18. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
AR<;ELIK A.$ ,
Plaintiff,
C.A. No. 15-961-LPS

V.

E. I. DU PONT DE NEMOURS AND
COMPANY,
Defendant.
John M. Seaman, ABRAMS & BAYLISS LLP, Wilmington, DE
Jon C. Weingrat, Jonathan L. Greenbalt, Keith R. Palfin, SHEARMAN & STERLING,
Washington DC
Attorneys for Plaintiff An;elik A.$.

Beth Moskow-Schnoll, BALLARD SPAHR LLP, Wilmington, DE
Peter L. Haviland, Scott S. Humphreys, BALLARD SPAHR LLP, Los Angeles, CA
Attorneys for Defendant E.I. du Pont De Nemours and Company

MEMORANDUM OPINION

March 20, 2018
Wilmington, Delaware

sk~t~
Plaintiff An;;elik A.$. ("Arcelik") sued Defendant E.I. du Pont de Nemours and Company
("DuPont"), seeking damages related to Arcelik' s recall of its faulty clothing dryers sold to the
public. (D.I. 29 at 1; D.I. 1) Pending before the Court is DuPont's renewed motion to dismiss
Arcelik's amended complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim and Rule 12(b)(7) for failure to join foreign non-parties Epcos AG and/or Epcos India as
necessary and indispensable parties. (D.I. 28) The Court will grant in part and deny in part
DuPont's motion.

I.

BACKGROUND
Arcelik is a Turkish company. (D.I. 1 ,i 8) DuPont is a Delaware corporation. (D.I. 1

,i 9) Arcelik manufactured electric tumble dryers for drying clothes that used capacitors
containing DuPont' s "Zytel" product, which is a plastic resin having certain electrical insulation
properties. (D.I. 1 ,i 2-3) A number of these dryers caught fire in the homes of customers,
"subjecting Arcelik to significant remediation expenses." (Id. ,i,i 1-3) Arcelik alleges that the
cause of the fires was defects in DuPont' s Zytel. (Id.) Arcelik purchased the capacitors
containing the allegedly defective batches of Zytel from a third-party German manufacturer,
Epcos AG ("Epcos"). (Id. ,i 16) In turn, Epcos bought those Zytel batches from DuPont and its
global subsidiaries. (Id. ,i 17)
Arcelik initially asserted six claims against DuPont: (1) negligent misrepresentation;
(2) fraudulent misrepresentation; (3) breach of implied warranty; (4) violation of the Delaware
Consumer Fraud Act; (5) negligent manufacture of a defective product; and (6) tortious
interference with a contract between Arcelik and Epcos AG. (See D .I. 1 ,i,i 103-10) The Court

1

granted DuPont' s motion to dismiss Arcelik' s breach of implied warranty claim with prejudice
and dismissed all of the other claims without prejudice, due to Arcelik' s failure to "adequately
allege agency relationships between DuPont and any entities under its direction or control." (D.I.
16 at 6) The Court did "not decid[ e] ... whether or not the facts currently in Plaintiff's
complaint would be sufficient to state claims if sufficient agency relationship(s) were alleged."
(Id.) The Court granted Arcelik leave to file an amended complaint and directed the parties to

conduct limited discovery "regarding the corporate relationships between DuPont and its
subsidiaries, and regarding the involvement of the Epcos entities (Epcos AG and Epcos India)" in
the events relating to the allegations in the complaint. (Id. at 2, 6)
Arcelik filed an amended complaint, reasserting the five claims that had been dismissed
without prejudice. (D.I. 19) In the amended complaint, Arcelik added allegations regarding the
agency relationship between DuPont and its subsidiaries, including that DuPont's global
subsidiaries, E.I. DuPont India Private Ltd. ("DuPont India") and E.I. DuPont China Holding Co.
Ltd. ("DuPont China"), "acted under the direction and control of DuPont and were agents of
DuPont at all relevant times. " (Id.

,r 17)

Arcelik contends that Epcos bought the purportedly

defective Zytel at issue from DuPont India, which acted as a sales agent for and under the control
and direction of DuPont. (Id.

,r 18)

While acknowledging DuPont' s representation in this

litigation that the Zytel at issue was manufactured at DuPont China, Arcelik emphasizes that
Zytel is still a DuPont product manufactured under the direction and control of DuPont at various
manufacturing sites. (Id.

,r 19)

The parties then agreed that instead of conducting limited discovery along the lines of
what the Court had permitted, DuPont would accept, for purposes of a further motion to dismiss,
2

that DuPont China and DuPont India are its agents. (D.I. 27) The parties further agreed that
DuPont would file a renewed motion to dismiss on the limited questions of (1) whether Epcos
AG and/or Epcos India are necessary and indispensable parties whose joinder would require
dismissal of Arcelik' s amended complaint, and (2) assuming that DuPont' s subsidiaries are
agents of DuPont, whether Arcelik has stated any claim upon which relief may be granted in its
amended complaint. (See id. at 3) The parties have completed briefing on DuPont' s renewed
motion. (See D.I. 29, 31 , 34)

II.

LEGAL ST AND ARDS
A.

Motion to Dismiss for Failure to State a Claim

Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)( 6) requires
the Court to accept as true all material allegations of a complaint. See Spruill v. Gillis, 372 F.3d
218, 223 (3d Cir. 2004). "The issue is not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the claims." In re Burlington Coat Factory

Sec. Litig. , 114 F .3d 1410, 1420 (3d Cir. 1997) (internal quotation marks omitted). Thus, the
Court may grant such a motion to dismiss only if, after "accepting all well-pleaded allegations in
the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not
entitled to relief." Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000) (internal quotation
marks omitted).
However, " [t]o survive a motion to dismiss, a civil plaintiff must allege facts that ' raise a
right to relief above the speculative level on the assumption that the allegations in the complaint
are true (even if doubtful in fact). "' Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and quotation

3

marks omitted)). A claim is facially 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The complaint must state enough facts
to raise a reasonable expectation that discovery will reveal evidence of [each] necessary element"
of a plaintiffs claim. Wilkerson v. New Media Tech. Charter Sch. Inc. , 522 F.3d 315, 321 (3d
Cir. 2008) (internal quotation marks omitted).
The Court is not obligated to accept as true "bald assertions," Morse v. Lower Merion

Sch. Dist., 132 F .3d 902, 906 (3d Cir. 1997) (internal quotation marks omitted), "unsupported
conclusions and unwarranted inferences," Schuy lkill Energy Res., Inc. v. Pennsylvania Power &

Light Co., 113 F.3d 405 , 417 (3d Cir. 1997), or allegations that are "self-evidently false ," Nami v.
Fauver, 82 F.3d 63 , 69 (3d Cir. 1996).

B.

Motion to Dismiss for Failure to Join a Necessary and Indispensable Party

Pursuant to Federal Rule of Civil Procedure 12(b)(7), a party may seek dismissal for
failure to join a party under Rule 19. In deciding whether to grant such a dismissal, the Court
must first determine whether the party is a necessary party under Rule 19(a). See generally

Refractories Co. v. First State Ins. Co., 500 F.3d 306, 312 (3d Cir. 2007). A party is necessary if,
in the absence of the party, (1) complete relief cannot be afforded to the present parties,
(2) the disposition of the action would impair the party's ability to protect its own interest, or
(3) any of the present parties would be subject to a substantial risk of multiple or inconsistent
obligations. See Fed. R. Civ. P. 19(a). If the party is necessary under Rule 19(a), the party must
be joined, if joinder is feasible. If joinder is necessary, but infeasible, the Court must then
determine whether the party is "indispensable" under Rule 19(b). This inquiry requires a

4

balancing of the interests of the plaintiff, the defendant, the absent party, the courts, and the
public. See Feriozzi Co. v. Ashworks, Inc., 130 Fed. Appx. 535, 538-39 (3d Cir. 2005) (citing

Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 109-11 (1968))). If an
absent party is indispensable, the Court must dismiss the action. See Gen. Refractories Co., 500
F.3d at 312.
The movant "bears the burden of showing why an absent party should be joined under
Rule 19." Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 635 F.3d 87, 97 (3d Cir. 2011); see

also Camacho v. Major League Baseball, 297 F.R.D. 457, 461 (S.D. Cal. 2013); Cephalon, Inc.
v. Watson Pharm. , Inc. , 629 F. Supp. 2d 338, 346 (D. Del. 2009). "When making a Rule 19
determination, the Court may consider evidence outside the pleadings." Jurimex Kommerz

Transit G.m.b.H v. Case Corp. , 201 F.R.D. 337, 340 (D. Del. 2001).

III.

DISCUSSION

A.

Epcos AG And Epcos India Are Not Necessary Parties

Du.Pont argues that the "Court cannot grant complete relief here without Epcos AG and
Epcos India." (D.I. 29 at 6) In DuPont's view, because "Epcos India purchased Zytel as a raw
material and then allegedly used it as a component part in its manufacture of electrical capacitors
that its German affiliate, Epcos AG, sold to Arcelik, ... this case implicates the raw
material/component part supplier defenses, which cannot be litigated without Epcos." (Id. 6-7)
(citing Cropper v. Rego Distribution Ctr., Inc., 542 F. Supp. 1142, 1156 (D. Del. 1982) (" It is
well established that a manufacturer who merely supplies a component part subsequently
assembled by another in a manner creating a dangerous condition is not liable to one injured
thereby.")). To Du.Pont, the determination of whether Zytel was defective "turns, at least in part,

5

on the purpose for which" Epcos bought Zytel, "the extent of DuPont India' s involvement, if any,
in Epcos's decision, as well as factual issues concerning Epcos's incorporation of [Zytel] in its
manufacture of the capacitors." (Id. 6-7)
The Court disagrees with DuPont. The raw material/component part supplier defense is
not implicated where the raw material or component is itself alleged to be defective. See
Apperson v. E.I. du Pont de Nemours & Co. , 41 F.3d 1103, 1106 (7th Cir. 1994) ("Strict liability

may extend to manufacturers of component parts for injuries caused by design or manufacturing
defects in the component part itself."); Restatement (Second) of Torts§ 402A, cmt. p (1965) ("If
for example, raw coffee beans are sold to a buyer who roasts and packs them for sale to the
ultimate consumer, it cannot be supposed that the seller will be relieved of all liability when the
raw beans are contaminated with arsenic, or some other poison.").
Here, Arcelik alleges that Zytel itself was defective at the "time of sale," even before it
was used as a raw material by Epcos in the manufacture of its capacitors. (See D.I. 19 ,r,r 102-04)
Arcelik is not alleging that Zytel became defective during any step Epcos may have used to
process Zytel. Rather Arcelik is alleging that the defect in Zytel occurred as a result of "ionic
contamination" of an additive DuPont used when manufacturing Zytel. (See id.

,r 103)

It is this

contamination during DuPont' s own manufacturing process, according to Arcelik, that "severely
degraded Zytel 's electrical characteristics" and its "suitability for use in electrical appliances,"
such as Arcelik's dryers. (See id.

,r,r 102, 103)

Thus, the amended complaint alleges, the "dryer

frres, and Arcelik' s resulting injuries were directly and proximately caused by the defective
Zytel." (Id.

,r 105)

Therefore, based on Arcelik's allegations in the amended complaint, the raw

material/component part supplier defenses are inapplicable here.

6

DuPont argues that the foreign Epcos entities are crucial in this case because "by its own
admission, Arcelik' s communications regarding the electrical capabilities of the capacitors were
with Epcos," not with DuPont. (D.I. 29 at 7) Noting that Arcelik has not alleged it had a
contract or any other type relationship or even communications with DuPont regarding the use of
Zytel in its dryers, DuPont contends that the foreign Epcos entities are "more than a witness to
the activities at issue in this case - [they are] active participant[ s] whose presence is crucial."

(Id.)
Again the Court disagrees. The focus of Arcelik' s allegations is not on Epcos ' s
manufacture of its capacitors using Zytel, which occurred after DuPont sold Zytel to Epcos.
Instead, the focus is on DuPont' s own manufacture of defective batches of Zytel, which occurred
before DuPont sold those batches to Epcos. Arcelik has not alleged that Epcos itself caused or
contributed to any defects in Zytel when Epcos manufactured its capacitors. 1
The other Rule 19 factors do not support a contrary conclusion. DuPont discusses Epcos
AG' s and Epcos India' s ability to protect their own interests and whether DuPont risks facing
multiple or inconsistent obligations. (D.I. 29 at 8) The mere possibility that a potential judgment
here against DuPont may have a preclusive effect on the absent Epcos parties is not enough to
make the absent parties indispensable and preclude this case from going forward against DuPont.

See Huber v. Tay lor, 532 F .3d 23 7, 251 (3d Cir. 2008) ("That issue preclusion is possible,

1

The parties dispute whether the Rule 19 analysis should be addressed on a claim-byclaim basis or by considering the litigation as a whole. ( Compare D .I. 31 at 3-4 with D .I. 34 at 1)
As the Court would reach the same outcome either way, the Court need not resolve this dispute.
Additionally, the Court does not reach the issue of whether the Epcos entities are "indispensable"
under Rule 19(b), given the Court' s conclusion that they are not necessary parties under Rule
19(a).
7

however, is not enough to trigger a Rule 19(a)(2)(i) finding."). Similarly, the possibility that
DuPont may be subjected to multiple obligations in a potential litigation later between the
foreign subsidiaries of DuPont and the Epcos parties is not enough to trigger Rule 19. See Gen.

Refractories, 500 F.3d at 319 (" [A]n outcome adverse to [the defendant] in [the plaintiffs]
present action against it does not have any legal effect on whatever right of contribution or
indemnification [the defendant] may have against [other parties].").
DuPont has failed to meet its burden to show that the Epcos parties are necessary under
Rule 19. Thus, the Court will deny DuPont' s motion to dismiss for failure to join the foreign
non-parties.

B.

Economic Loss Doctrine Does Not Require Dismissal
of the Negligence Claims (Counts I and IV)

DuPont argues that the economic loss doctrine bars Arcelik' s negligent misrepresentation
(Count I) and negligent manufacturing claims (Count IV). DuPont contends that Arcelik' s
alleged damages, such as recall expenses and damage to the dryers themselves, are "purely
economic." (D.I. 29 at 12, 16)
"The economic loss doctrine is a judicially created doctrine that prohibits recovery in tort
where a product has damaged only itself (i.e. , has not caused personal injury or damage to other
property) and, the only losses suffered are economic in nature." Danforth v. Acorn Structures,

Inc., 608 A.2d 1194, 1195 (Del. 1992).
Taking the allegations in the amended complaint as true, as the Court must do, the
economic loss doctrine does not bar the negligence claims. Arcelik seeks to recover damages not
only from its recall of the faulty dryers, but also for losses it incurred due to property damage in

8

the homes of its customers as a result of the dryers catching fire during use. (See D.I. 19 ,r,r 13,
64) Although these losses were initially incurred by Arcelik' s customers, they were allegedly
passed on to and suffered ultimately by Arcelik. (See id.

,r,r 14, 65)

DuPont also contends that the "alleged damage to customer homes is merely incidental to
the core damages sought and therefore does not prevent application of the economic loss rule."
(D.I. 34 at 10) At this stage of the proceedings, however, the Court cannot conclude that the
damages to the homes of Arcelik' s customers are "incidental to the core damages sought" or de
minimis. The amended complaint plausibly alleges otherwise.

If the evidence the parties develop cannot support a finding that Arcelik itself suffered any

damages other than damage to the dryers themselves, then DuPont may have a good faith basis to
assert the economic loss doctrine again at a later stage of this litigation. At this point, however,
the Court will deny DuPont' s motion to dismiss Counts I and IV based on the economic loss
doctrine.
C.

Arcelik Has Sufficiently Pied Negligent Misrepresentation (Count I)

To plead a negligent misrepresentation under Delaware law, a plaintiff must allege:
"( 1) the existence of a pecuniary duty to provide accurate information; (2) the supplying of false
information; (3) that the defendant failed to exercise reasonable care in obtaining or
communicating the information; and (4) that the plaintiff suffered a pecuniary loss caused by
reliance upon the false information." Kuhn Const. Co. v. Ocean & Coastal Consultants, Inc. ,
844 F. Supp. 2d 519, 525 (D. Del. 2012). DuPont contends that Arcelik failed to adequately
allege the first element because DuPont insists it had no pecuniary duty to provide accurate
information to Arcelik regarding Zytel, as these entities had no contractual or business

9

relationship. (D.I. 29 at 12-13)
As DuPont correctly observes, " [a] pecuniary duty is not dependent on contractual privity;
rather, it arises when the parties are in a business relationship, from which they expect pecuniary
benefits." Kuhn, 844 F. Supp. 2d at 525. In Kuhn , however, the plaintiff "acknowledge[d] that
only economic losses ... occurred." Id. at 526. Here, by contrast, as noted just above, the
alleged damages extend beyond just economic losses.
DuPont cites Section 552 of the Restatement (Second) of Torts, which can make one
liable for pecuniary losses caused by one ' s false information,2 and contends that this exception to
the economic loss doctrine does not apply because DuPont's publications regarding Zytel contain
express disclaimers providing no warranty for the suitability of any particular Zytel product for
any particular purpose. (D.I. 34 at 7; see also Kuhn , 844 F. Supp. 2d at 525 (noting Delaware
recognizes § 552 as "a narrow exception to the economic loss doctrine")) The Court has already
concluded, based on the allegations, that Arcelik is not seeking purely economic damages, and
the economic loss doctrine does not provide a meritorious basis for dismissal, so the Court need
not also decide if the § 552 exception to the doctrine applies.
Thus, the Court will deny DuPont' s motion to dismiss the negligent misrepresentation
claim.

2

Restatement (Second) of Torts § 552 states in relevant part:
One who, in the course of his business, profession or employment,
or in any other transaction in which he has a pecuniary interest,
supplies false information for the guidance of others in their
business transactions, is subject to liability for pecuniary loss
caused to them by their justifiable reliance upon the information, if
he fails to exercise reasonable care or competence in obtaining or
communicating the information.
10

D.

Arcelik Has Failed to Plead Fraud (Count II)

"To allege common law fraud by misrepresentation or omission, Delaware courts require
a plaintiff to plead (1) the defendant falsely represented or omitted facts the defendant had a duty
to disclose; (2) the defendant knew or believed the representation was false or made the
representation with reckless indifference to the truth; (3) the defendant intended to induce the
plaintiff to act or refrain from acting; (5) the plaintiff acted in justifiable reliance on the
representation; and (6) the plaintiff was injured by his reliance." OpenGate Capital Grp. LLC v.
Thermo Fisher Sci. Inc., 2014 WL 3367675, at *12 (D. Del. July 8, 2014) (citing DCV Holdings,
Inc. v. ConAgra, Inc., 889 A.2d 954, 958 (Del. 2005)). "Delaware courts require the
circumstances constituting fraud to be stated with particularity, but intent and knowledge may be
averred generally." Id.
DuPont challenges the sufficiency of the allegations of the first two elements. (See D.I.
29 at 14) Arcelik has adequately alleged fraudulent representations or omissions where DuPont
had a duty to disclose. (See, e.g. , D.I. 19 ~~ 60, 86) (alleging "DuPont made numerous, repeated
representations that reflected Zytel's suitability for use in home appliances such as dryers that
require that the insulation material perform under conditions of high heat and humidity" which
"were false and misleading with respect to the defective batches of Zytel") However, Arcelik has
failed to adequately and with particularity allege that DuPont made any misrepresentations or
omissions knowingly or with reckless indifference to the truth. The complaint is devoid of
anything other than a conclusory allegation to this effect. (See id. at~ 87)
The most Arcelik can state on this point is that DuPont failed to test its Zytel for certain
purposes. (See id. at~ 87) ("DuPont knew that it lacked any basis for [its] ~epresentations

11

because it did not measure the electrical resistivity of the Zytel it produced and did nothing to
measure or mitigate the risk of ionic contamination of Zytel [and knew that ionic contamination
would] severely degrade the product's electrical and flammability characteristics and suitability
for use in electrical appliances.")) But this fails to allege that DuPont had a conscious
indifference to the results of its failure to conduct certain tests. See DRR, L.L. C. v. Sears

Roebuck and Co., 949 F. Supp. 1132, 1138 (D . Del. 1996); see also Van Roy v. Sakhr Software
Co. , 2014 WL 3367275 , at *4 (D. Del. July 8, 2014) ("[W]hen a plaintiff pleads a claim of fraud
that charges that the defendants knew something, it must allege sufficient facts from which it can
reasonably be inferred that this ' something' was knowable and that the defendants were in a
position to know it.").
The Court is not persuaded to adopt a contrary outcome based on Arcelik' s citation to

Hawkinson v. A.H Robins Co., 595 F. Supp. 1290, 1312 (D . Colo. 1984). While that case did
say, as Arcelik quotes, that a defendant' s "representations ... were made with reckless ignorance
of their truth or falsity because of the failure to test the [product] and its component parts prior to
the marketing campaign, and the failure to place adequate controls on the product's use," it also
involved "affirmative[] assert[ions] that the [product] was safe, implying full knowledge of all
possible consequences." This latter factor is not present here. Arcelik does not allege that
DuPont affirmatively asserted that Zytel was safe for the use to which Epcos was putting it - and,
indeed, DuPont has put in the record the express disclaimers it provided to the market. (See D.I.
29 at 4) 3

3

The Court has not been persuaded by the other deficiencies DuPont purports to find in
the allegations. DuPont's suggestion that a manufacturing defect, as opposed to a design defect
(see D.I. 29 at 14), cannot be a basis for a fraud claim, is unsupported by any cited authority.
12

Accordingly, the Court will grant DuPont' s motion to dismiss the fraudulent
misrepresentation claim.

E.

Arcelik Has Sufficiently Pied a
Delaware Consumer Fraud Act Claim (Count III)

Section 2522 of the Delaware Consumer Fraud Act ("DCFA") 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." Theis v. Viewsonic Corp. , 2013 WL 1632677, at *2 (D. Del. Apr. 16,
2013). To state a claim under the DCFA, "a plaintiff must, at a minimum, allege with the
required particularity that the defendant negligently omitted or concealed a material fact, and that
the defendant 'intended that others rely on the omission or concealment. "' Eames v. Nationwide

Mut. Ins. Co. , 2008 WL 4455743 , at *13 (D. Del. Sept. 30, 2008), affd, 346 F. App'x 859 (3d
Cir. 2009) (citing Stephenson v. Capano Dev. Inc., 462 A.2d 1069, 1074 (Del. 1983)). The
heightened pleading standards of Federal Rule of Civil Procedure 9(b) apply to claims asserted
under the DCFA. See Johnson v. Ace Cash Express Inc. , 2015 WL 4397482, at *3 (D. Del. July
17, 2015). "Rule 9(b) does not require an exhaustive catalog of facts[;] it merely requires
sufficient factual specificity to provide assurance that plaintiff has investigated and reasonably
believes that a fraud has occurred." Id.
DuPont argues that "Arcelik' s DCFA claim fails for the same reasons as its fraudulent

Moreover, to the extent DuPont is challenging the sufficiency of the allegations that DuPont
knew its representations were false, this dispute appears to tum on a disagreement as to the
timing of the representations on which Arcelik is basing its claims, which indicates a fact dispute
that cannot be resolved at this stage of the proceedings. (Compare D.I. 29 at 14 with D.I. 31 at
17)
13

misrepresentation claim." (D.I. 29 at 15) The Court disagrees. Although similar, there are also
differences between common law fraud and DCF A claims. See Eames v. Nationwide Mut. Ins.
Co., 412 F. Supp. 2d 431 , 437 (D. Del. 2006) (noting three differences). One difference

especially pertinent here is that "a negligent misrepresentation is sufficient to violate the statute
. . . . [T]he only intent requirement of the Act is that in omitting or concealing a material fact, the
defendant must have intended that others rely on the omission or concealment." Id. at 437
(emphasis added).
Taking the allegations in the amended complaint as true and in the light most favorable to
Arcelik, which the Court is obligated to do at this stage, there is a plausible claim that DuPont
omitted or concealed material facts with the intention that others rely on its statements. (See,
e.g., D.I. 19 ,r 93) ("DuPont' s marketing materials, advertisements, product guides, and other

materials misrepresented the electrical characteristics of Zytel with the intent that its customers,
end-users, and others would rely upon those representations in connection with the sale of
Zytel.") Arcelik further alleges that "DuPont also concealed or omitted material facts, including
the fact that it had no process for measuring the electrical-resistivity characteristics or detecting
ionic contamination of Zytel." (Id. ,r 95) While the amended complaint fails to adequately allege
that DuPont made misrepresentations knowingly or recklessly, the Court concludes that it does
sufficiently allege that DuPont did so negligently.
DuPont further argues that Arcelik' s DCF A claim fails because "no transactions occurred
in Delaware." (D.I. 29 at 15) Arcelik alleges, however, that "DuPont authored, published, and
disseminated [its] misrepresentations from the state of Delaware." (D.I. 19 ,r 96; see also D.I. 31
at 16) The amended complaint is sufficient on this point. See Lony v. E.I. du Pont de Nemours

14

& Co., 821 F. Supp. 956, 961-62 (D. Del. 1993) (finding sufficient connection to Delaware

under DCF A as "DuPont regularly conducts business in the State of Delaware and ... the alleged
misrepresentation commenced in Delaware"); see also In re Warfarin Sodium Antitrust Litig. ,
212 F.R.D. 231,248 n.15 (D. Del. 2002), ajj'd, 391 F.3d 516 (3d Cir. 2004) (noting that DCFA
"protects non-residents as well as residents from unfair or deceptive merchandising practices
conducted in part or wholly within the State") (internal quotation marks and citations omitted).
Nor is there merit to DuPont's contention that the DCF A claim fails due to the lack of
allegations of a business-consumer relationship. (D.I. 34 at 8) DCF A "expressly provides a
private right of action 'to any victim of a violation of the statute."' Chase Bank USA NA. v.

Hess, 2011 WL 45132, at *11 (D. Del. Jan. 6, 2011) (quoting 6 Del. Code§ 2525(a)).
Furthermore, "according to its provisions, the [DCF A] should be 'liberally construed and applied
to promote its underlying purposes and policies. "' Id. (quoting 6 Del. Code§ 2512). As an
indirect customer of DuPont' s Zytel product, Arcelik may seek protection under the required
liberal construction of the DCFA. See id. at * 11.
Thus, the Court will deny DuPont' s motion to dismiss the DCFA claim.

F.

Arcelik Has Sufficiently Pied Tortious Interference with Contract (Count V)

A claim for tortious interference with contract under Delaware law requires the following:
"(1) a valid contract; (2) about which the defendants have knowledge; (3) an intentional act by
the defendants that is a significant factor in causing the breach of contract; (4) done without
justification; and (5) which causes injury." Kabba} v. Google, Inc. , 2014 WL 1369864, at *4 (D.
Del. Apr. 7, 2014). DuPont challenges the sufficiency of the pleading of the second and third
elements. (See D.I. 29 at 16)

15

The Court concludes that the amended complaint adequately states a claim. Arcelik
alleges DuPont tortiously interfered with Arcelik's "contract with Epcos for the purchase of
capacitors to be used in its line of electrical dryers" (D.I. 19, 107), which Arcelik alleges
" [b ]ased on information and belief, DuPont and its subsidiary and agent DuPont India were
aware of' (id. , l 09). Arcelik further alleges "DuPont, through its misrepresentations about
Zytel' s electrical capabilities and its sale of defective Zytel, caused Epcos not to perform its
contractual obligations." (Id. , 110) In this way, DuPont is alleged to have taken an intentional
act that was a significant factor in Epcos ' breach of contract. Determining on the merits whether
DuPont wrongfully induced Epcos not to perform its contractual obligations with Arcelik "will
require a fact-intensive determination." Kicliflip, Inc. v. Facebook, Inc. , 999 F. Supp. 2d 677,
689 (D. Del. 2013) (internal citation omitted).
Accordingly, the Court will deny DuPont's motion to dismiss the tortious interference
claim.
G.

The Court Will Not Dismiss at this Time based on Statute of Limitations

DuPont argues that "Arcelik' s claims are also barred by the applicable statutes of
limitations in the foreign countries where those causes of action arose." (D.I. 29 at 18)
(contending four of Arcelik' s claims are time-barred under relevant Turkish, Chinese, and Indian
laws). According to DuPont, "Arcelik alleges that it learned of the basis for its claims at least as
early as February 2013. Because the Complaint was filed in October 2015, any claim subject to a
limitation period of two years or less is time barred." (D .I. 29 at 18) Arcelik counters that
"DuPont assumes without supporting evidence or analysis that a choice of law inquiry would
show that these claims accrued in either India or China" and " [s]uch a determination is not
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appropriate at this stage." (D.I. 31 at 18 n. 22)
The Court agrees with Arcelik. This case (although pending for some time) remains in its
early stages. Virtually, no discovery has taken place, and the Court would benefit from a moredeveloped record. The Court does not find it appropriate at the motion to dismiss stage of this
case to undertake a choice oflaw analysis. See Zazzali v. Hirsch/er Fleischer, P. C., 482 B.R.
495, 517 (D. Del. 2012) ("The Court will defer making a choice oflaw determination until there
is development of a more complete factual record.") (citing Grabo.ff v. The Collern Firm , 2010
WL 4456923, at *8 (E.D. Pa. Nov. 8, 2010) ("Due to the complexity of this analysis, when

confronted with a choice oflaw issue at the motion to dismiss stage, courts within the Third
Circuit have concluded that it is more appropriate to address the issue at a later stage in the
proceedings.")); In re Intel Corp. Microprocessor Antitrust Litig., 496 F. Supp. 2d 404,411 (D.
Del. 2007) ("This litigation is still in its infancy, and the Court concludes that these complex and
sometimes dispositive choice oflaw questions should be made with the benefit of a more
complete context for this litigation.").
Thus, the Court will deny DuPont's motion to dismiss based on time bars.

H.

The Court Will Not Dismiss this Case due to Forum Non Conveniens

Alternatively, DuPont argues that Arcelik' s amended complaint must be dismissed on
forum non conveniens grounds. (D.I. 29 at 19) " It is settled that the defendant bears the burden

of persuasion as to all elements of the forum non conveniens analysis. This burden comprises
two basic elements. The defendant must establish, initially, that an adequate alternative forum
exists as to all defendants. If the defendant satisfies this burden, it must then show that the
private and public interest factors weigh heavily in favor of dismissal." Lacey v. Cessna Aircraft

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Co. , 932 F.2d 170, 180 (3d Cir. 1991); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254
n.22 (1981) ("At the outset of any forum non conveniens inquiry, the court must determine
whether there exists an alternative forum . Ordinarily, this requirement will be satisfied when the
defendant is ' amenable to process ' in the other jurisdiction.").
DuPont has failed to meet its burden to show that there is another forum where the
defendant could be sued. See Doe v. Exxon Mobil Corp., 69 F. Supp.3d 75, 88 (D.D.C. 2014)
("Exxon's argument that Indonesia is available as an alternative forum because [a foreign Exxon
subsidiary] is amenable to service there is incorrect. An alternative forum is only available if the
entire case and all parties can come within the jurisdiction of that forum. ") (internal quotation
marks omitted). DuPont argues that "India is an alternative adequate forum to litigate this
action" because " [b]oth Epcos India and DuPont India are amenable to process in India." (D.1.
29 at 19) But neither of these entities are parties to this action, while DuPont is, and DuPont has
not shown that it is amenable to process in India. See generally Eurofins Pharma US Holdings v.

BioAlliance Pharma SA, 623 F.3d 147, 160-161 (3d Cir. 2010) (affirming district court' s
dismissal of complaint under forum non conveniens grounds where " [district court initially]
found that each of the defendants is amenable to service of process in France and that, in any
event, none of the defendants will contest personal jurisdiction there," and thereafter applied
private and public interest factors). Although, under the circumstances, the Court will not
address each of the factors it would have to consider if DuPont had shown there is another
adequate forum , the Court is not persuaded that Delaware is an inconvenient forum in which to
litigate for DuPont.
Thus, the Court will deny DuPont's motion to dismiss under forum non convenience

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grounds.

IV.

CONCLUSION
For the foregoing reasons, the Court will deny DuPont's motion to dismiss for failure to

state a claim and for failure to join foreign non-parties. An appropriate order follows.

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