Wolfpen II Planned Community Homeowners Association, Inc. v. Atlas Roofing Corporation
Filing
56
ORDER granting in part and denying in part (4) Motion for Judgment on the Pleadings in case 1:13-md-02495-TWT; granting in part and denying in part (25) Motion for Judgment on the Pleadings in case 1:13-cv-04208-TWT. Signed by Judge Thomas W. Thrash, Jr on 6/24/2015. Associated Cases: 1:13-md-02495-TWT, 1:13-cv-04208-TWT(ss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
IN RE ATLAS ROOFING
MDL DOCKET NO. 2495
CORPORATION CHALET SHINGLE 1:13-md-2495-TWT
PRODUCTS LIABILITY
LITIGATION
WOLFPEN II PLANNED
COMMUNITY HOMEOWNERS
ASSOCIATION, INC., on behalf of
themselves and all others similarly
situated,
Plaintiff,
v.
CIVIL ACTION FILE
NO. 1:13-CV-4208-TWT
ATLAS ROOFING CORPORATION,
Defendant.
OPINION AND ORDER
This is a multi-district action arising out of the marketing and sale of allegedly
defective roofing shingles. It is before the Court on the Defendant Atlas Roofing
Corporation’s Motion for Judgment on the Pleadings [Doc. 4] as to Count III, Count
IV, and Count V of the Plaintiff Wolfpen II Planned Community Homeowners
Association, Inc.’s Amended Complaint. For the reasons set forth below, the
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Defendant Atlas Roofing Corporation’s Motion for Judgment on the Pleadings [Doc.
4] is GRANTED in part and DENIED in part.
I. Background
The Plaintiff Wolfpen II Planned Community Homeowners Association, Inc.
is a purchaser of the Atlas Chalet Shingles (“Shingles”), which are designed,
manufactured, and sold by the Defendant Atlas Roofing Corporation (“Atlas”).1 The
Defendant represented and continues to represent – in marketing material and on the
Shingles packaging – that the Shingles meet applicable building codes and industry
standards.2
The Plaintiff claims that the Shingles are defective due to a flaw in the
manufacturing process. This process – which allegedly does not conform to applicable
building codes and industry standards – “permits moisture to intrude into the Shingle
creating a gas bubble that expands when the Shingles are exposed to the sun resulting
in cracking and blistering of the Shingles.”3 The Plaintiff filed suit in the U.S. District
Court for the Western District of North Carolina,4 asserting claims for: breach of the
1
Am. Compl. ¶ 2.
2
Am. Compl. ¶¶ 8-9, 55.
3
Am. Compl. ¶ 40.
4
“[I]n multidistrict litigation under 28 U.S.C. § 1407, the transferee court
applies the state law that the transferor court would have applied.” In re Conagra
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express warranty (Count I), breach of the implied warranties of merchantability and
fitness for a particular purpose (Count II), negligence (Count III), and unfair and
deceptive acts and practices (Count IV). The Plaintiff seeks damages, litigation
expenses, and equitable relief.5 The Defendant moves to dismiss Count III, Count IV,
and the Plaintiff’s request for equitable relief.
II. Legal Standard
A “motion for judgment on the pleadings under Rule 12(c) is subject to the
same standard as a motion to dismiss under Rule 12(b)(6).”6 A complaint should be
dismissed under Rule 12(b)(6) only where it appears that the facts alleged fail to state
a “plausible” claim for relief.7 A complaint may survive a motion to dismiss for failure
to state a claim, however, even if it is “improbable” that a plaintiff would be able to
prove those facts; even if the possibility of recovery is extremely “remote and
Peanut Butter Products Liab. Litig., 251 F.R.D. 689, 693 (N.D. Ga. 2008); see also In
re Temporomandibular Joint (TMJ) Implants Products Liab. Litig., 97 F.3d 1050,
1055 (8th Cir. 1996) (“When considering questions of state law, however, the
transferee court must apply the state law that would have applied to the individual
cases had they not been transferred for consolidation.”). Here, both parties appear to
agree that North Carolina law governs the Plaintiff’s state law claims.
5
The Plaintiff’s request for equitable relief was labeled Count V.
6
Hopkins v. DeVeaux, 781 F. Supp. 2d 1283, 1289 n.4 (N.D. Ga. 2011).
7
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); FED. R. CIV. P. 12(b)(6).
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unlikely.”8 In ruling on a motion to dismiss, the court must accept the facts pleaded
in the complaint as true and construe them in the light most favorable to the plaintiff.9
Generally, notice pleading is all that is required for a valid complaint.10 Under notice
pleading, the plaintiff need only give the defendant fair notice of the plaintiff’s claim
and the grounds upon which it rests.11
III. Discussion
A. Injunctive and Declaratory Relief
The Plaintiff requests that the Court issue an injunction mandating that the
Defendant:
1. “[N]otify owners of the defect,”12
8
Bell Atlantic v. Twombly, 550 U.S. 544, 556 (2007).
9
See Quality Foods de Centro America, S.A. v. Latin American
Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11th Cir. 1983); see also
Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th
Cir. 1994) (noting that at the pleading stage, the plaintiff “receives the benefit of
imagination”).
10
See Lombard’s, Inc. v. Prince Mfg., Inc., 753 F.2d 974, 975 (11th Cir.
1985), cert. denied, 474 U.S. 1082 (1986).
11
See Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Twombly, 127
S. Ct. at 1964).
12
Am. Compl. ¶ 118.
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2. “[R]eassess all prior warranty claims and pay the full costs of
repairs,”13 and
3. “[P]ay the costs of inspection to determine whether any Class
member’s Shingles needs replacement.”14
The Plaintiff also requests that the Court issue a declaratory judgment stating:
1. “The Shingles have a defect which results in premature failure,”15
2. “[The Defendant’s] warranty fails of its essential purpose,”16 and
3. “[The Defendant’s] warranty is void as unconscionable.”17
To begin, the Plaintiff’s request for injunctive relief must be dismissed.
Injunctive relief is only appropriate “when [a] legal right asserted has been infringed,”
and there will be irreparable injury “for which there is no adequate legal remedy.”18
Here, the Defendant argues – correctly – that the Plaintiff does not even allege that
legal remedies would be inadequate. Monetary damages would sufficiently
compensate the Plaintiff for the Shingles that have blistered and/or cracked. In
response, the Plaintiff argues that it is allowed to plead alternative and inconsistent
13
Id.
14
Id.
15
Id.
16
Id.
17
Id.
18
Alabama v. U.S. Army Corps of Engineers, 424 F.3d 1117, 1127 (11th
Cir. 2005) (emphasis added).
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claims.19 But the problem here is not that the Plaintiff’s request for injunctive relief
is inconsistent with the other claims, it is that the Plaintiff has failed to state a
plausible claim for injunctive relief to begin with.20
To receive declaratory relief, however, the Plaintiff does not have to establish
irreparable injury or the inadequacy of legal remedies.21 In moving to dismiss the
claim for declaratory relief, the Defendant first argues that the Plaintiff does not have
standing because the requested declarations will not redress its injury.22 To satisfy the
constitutional case-or-controversy requirement, “[a] plaintiff must allege personal
19
Pl.’s Resp. Br., at 4.
20
As a technical matter, the Court must dismiss the Plaintiff’s first
requested injunction – that the Defendant must notify owners of the defect – on
jurisdictional grounds. “[S]tanding is a threshold jurisdictional question which must
be addressed prior to . . . the merits of a party’s claims.” Bochese v. Town of Ponce
Inlet, 405 F.3d 964, 974 (11th Cir. 2005) (internal quotation marks omitted). “In the
absence of standing, a court is not free to opine in an advisory capacity about the
merits of a plaintiff’s claims.” Id. “To have Article III standing to pursue injunctive
relief . . . a plaintiff must have . . . an injury in fact that is capable of being redressed
by the injunction.” Virdi v. Dekalb Cnty. Sch. Dist., 216 Fed. Appx. 867, 871 (11th
Cir. 2007). Here, the Defendant correctly notes that the Plaintiff would not benefit
from this injunction. If, during this litigation, it is established that the Shingles are
indeed defective, it is unclear what the Plaintiff would gain from having the Defendant
simply notify it of this fact.
21
See Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 241
(1937) (“[A]llegations that irreparable injury is threatened are not required.”);
Katzenbach v. McClung, 379 U.S. 294, 296 (1964) (“Rule 57 of the Federal Rules of
Civil Procedure permits declaratory relief although another adequate remedy exists.”).
22
Def.’s Mot. to Dismiss, at 12-13.
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injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be
redressed by the requested relief.”23 The Plaintiff may establish redressability if it
shows that the “practical consequence” of the declaratory relief “would amount to a
significant increase in the likelihood that the [Plaintiff] would obtain relief that
directly redresses the injury suffered.”24 Here, the requested declarations – e.g., that
the Shingles are defective – would make it more likely that the Plaintiff would obtain
the necessary relief from the Defendant because it would establish an essential
component to liability. And although the Plaintiff’s remaining claims may provide
more direct relief, the Declaratory Judgment Act allows plaintiffs to seek a declaration
of rights “whether or not further relief is or could be sought.”25
The Defendant then argues that the Court ought to use its discretion to decline
the Plaintiff’s declaratory relief request because it overlaps with other claims brought
in this action.26 For example, the Defendant argues that many of the Plaintiff’s other
claims will require a determination as to whether the Shingles were defective. The
“Declaratory Judgment Act has been understood to confer on federal courts unique
23
Allen v. Wright, 468 U.S. 737, 751 (1984).
24
Utah v. Evans, 536 U.S. 452, 464 (2002).
25
28 U.S.C. § 2201.
26
Def.’s Mot. to Dismiss, at 13.
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and substantial discretion in deciding whether to declare the rights of litigants.”27 In
the declaratory judgment context, “the normal principle that federal courts should
adjudicate claims within their jurisdiction yields to considerations of practicality and
wise judicial administration.”28 The “range of considerations available to the district
court in deciding whether to entertain the declaratory action is vast.”29 The Eleventh
Circuit “has previously recognized convenience of the parties . . . as relevant.”30 Here,
the Plaintiff’s argument is that – assuming it successfully obtains class certification
– there may be class members whose Shingles have not yet blistered or cracked.
Consequently they will not have ripe claims for breach of warranty. Thus, there will
be no redundancy for these class members because – at the time of litigation – they
will only qualify for declaratory relief.31 This is a permissible purpose for seeking
27
Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995).
28
Id. at 288.
29
Manuel v. Convergys Corp., 430 F.3d 1132, 1137-38 (11th Cir. 2005).
30
Id. at 1135.
31
The Seventh Circuit explained the mechanics of such an approach when
it affirmed a district court’s decision to certify two classes in a products liability suit:
The court split the purchasers of windows into two groups: those who have
replaced their windows, and those who have not. Those who have replaced their
windows are properly members of the (b)(3) class because they require the
award of damages to make them whole. Those who have not replaced their
windows but might in the future because of the purported design flaw are
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declaratory relief.32 And given that the Court will have to resolve nearly identical
factual issues with the other claims, it would be an efficient use of judicial resources
to permit this declaratory judgment claim.
Finally, the Defendant argues that the Plaintiff’s declaratory judgment claim
must be dismissed because it abridges the Defendant’s right to a jury trial.33 But as the
Eighth Circuit Court of Appeals has explained, “[a] litigant is not necessarily deprived
of a jury trial merely because it is a party to a declaratory judgment action . . . if there
would have been a right to a jury trial on the issue had it arisen in an action other than
one for declaratory judgment, then there is a right to a jury trial in the declaratory
properly members of a (b)(2) class. Such purchasers would want declarations
that there is an inherent design flaw, that the warranty extends to them and
specific performance of the warranty to replace the windows when they
manifest the defect, or final equitable relief.
Pella Corp. v. Saltzman, 606 F.3d 391, 395 (7th Cir. 2010) (emphasis added).
32
See Hardware Mut. Cas. Co. v. Schantz, 178 F.2d 779, 780 (5th Cir.
1949) (“The purpose of the Declaratory Judgment Act is to settle ‘actual
controversies’ before they ripen into violations of law or a breach of some contractual
duty.”); Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950) (“The
Declaratory Judgment Act allowed relief to be given by way of recognizing the
plaintiff’s right even though no immediate enforcement of it was asked.”).
33
Def.’s Mot. to Dismiss, at 15-16.
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judgment action.”34 Accordingly, the Plaintiff may pursue its claim for declaratory
relief for now.
B. Negligence
Under North Carolina law, the economic loss rule “prohibits the purchaser of
a defective product from bringing a negligence action against the manufacturer or
seller of that product to recover purely economic losses sustained as a result of that
product’s failure to perform as expected.”35 However, “where a defective product
causes damage to property other than the product itself, losses attributable to the
defective product are recoverable in tort rather than contract.”36 Here, the Plaintiff
only adequately alleges an injury to the Shingles themselves. Although the Amended
34
Northgate Homes, Inc. v. City of Dayton, 126 F.3d 1095, 1098-99 (8th
Cir. 1997); see also Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 504 (1959)
(“[T]he Declaratory Judgment Act . . . specifically preserves the right to jury trial for
both parties.”); Simler v. Conner, 372 U.S. 221, 223 (1963) (“The fact that the action
is in form a declaratory judgment case should not obscure the essentially legal nature
of the action. The questions involved are traditional common-law issues which can be
and should have been submitted to a jury under appropriate instructions as petitioner
requested . . . [and] the courts below erred in denying petitioner the jury trial
guaranteed him by the Seventh Amendment.”).
35
Ellis v. Louisiana-Pacific Corp., 699 F.3d 778, 783 (4th Cir. 2012)
(internal quotation marks omitted).
36
Id. (internal quotation marks omitted).
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Complaint contains a vague allegation that other property was damaged,37 a party must
do more than “tender[] naked assertion[s] devoid of further factual enhancement.”38
In response, the Plaintiff first argues that there is no express contract between
the Plaintiff and the Defendant; they were not in privity. Under North Carolina law,
the economic loss rule only applies when “the plaintiff ha[s] [a] basis for recovery in
contract or warranty.”39 However, “a direct contractual relationship in the sale of the
product itself is not a prerequisite to recovery for breach of express warranty against
the manufacturer.”40 When “the cause of action is based on breach of express
warranty, directed by the manufacturer to the ultimate purchaser, lack of privity
between the plaintiff-purchaser and the defendant-manufacturer is not a bar.”41 Here,
the Plaintiff alleges that the Defendant issued an express warranty to the original
37
Am. Compl. ¶ 110.
38
Iqbal, 556 U.S. at 678.
39
Ellis, 699 F.3d at 786 (internal quotation marks omitted); see also
Warfield v. Hicks, 91 N.C. App. 1, 10 (1988) (The economic loss rule does not apply
when the purchaser has “no basis for recovery in contract or warranty.”).
40
Alberti v. Manufactured Homes, Inc., 329 N.C. 727, 736 (1991).
41
Crews v. W.A. Brown & Son, Inc., 106 N.C. App. 324, 331 (1992)
(internal quotation marks omitted); see also Williams v. Hyatt Chrysler-Plymouth,
Inc., 48 N.C. App. 308, 313 (1980) (The “absence of contractual privity no longer bars
a direct claim by an ultimate purchaser against the manufacturer for breach of the
manufacturer’s express warranty which is directed to the purchaser.”).
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purchaser of the Shingles (e.g., the builder),42 and that the Plaintiff – the ultimate
consumer – was an intended beneficiary.43 Consequently, the Plaintiff may sue based
on the express warranty issued to the original purchaser. Additionally, the Plaintiff
acknowledges that it may sue based on the implied warranties of merchantability and
fitness for a particular purpose.44 Thus, because the lack of an “explicit contract does
not affect [the Plaintiff’s] ability to recover for [its] losses under a contractual
theory,”45 the economic loss rule applies.46
42
Am. Compl. ¶¶ 8, 19, 56.
43
Am. Compl. ¶ 84 (“Plaintiff and Class are third party beneficiaries of the
contracts between [the Defendant] and Plaintiff’s builders and Class Members’
builders.”). In addition, even without the privity exception for warranties, the Plaintiff
could still sue as a third-party beneficiary of the express warranty: “It is well settled
in North Carolina that where a contract between two parties is entered into for the
benefit of a third party, the latter may maintain an action for its breach.” Johnson v.
Wall, 38 N.C. App. 406, 410 (1978). “If the third party is an intended beneficiary, the
law implies privity of contract.” Id.
44
Am. Compl. ¶¶ 84, 86.
45
Ellis, 699 F.3d at 786.
46
The Plaintiff’s remaining arguments concerning the lack of an explicit
contract merit little discussion. For example, the Plaintiff argues that because it could
not negotiate the terms of the express warranty, that warranty cannot trigger
application of the economic loss rule. Multiple courts have already rejected this
argument. See Ellis, 699 F.3d at 786 (“We . . . do not believe that the fact that
Appellants are downstream purchasers makes a difference in the analysis . . . [i]n
Moore . . . the plaintiffs . . . had no occasion to bargain or consider the terms . . . yet
. . . the [economic loss rule] . . . barred the plaintiffs’ negligence claim . . ..”); Kelly
v. Georgia-Pacific LLC, 671 F. Supp. 2d 785, 795-96 (E.D.N.C. 2009) (The “sale of
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The Plaintiff then argues that “building code violations . . . are . . . excepted
from the [economic loss rule].”47 In support, the Plaintiff points out that the duty to
exercise care in performing residential construction exists independent of a contract.48
The Court does not follow the Plaintiff’s reasoning. It is unclear how, by establishing
the breach of an independent duty, the Plaintiff has insulated its claim from the
economic loss rule. The rule expressly applies to independent torts where a party is
seeking to recover only for economic losses.49 The Plaintiff cites to violations of the
building code in order to establish a negligence claim, which is a tort, and so that
a product with a limited warranty that covers the down-the-stream owner of the
product . . . does not open [the defendant] to a negligence claim for purely economic
loss under North Carolina law once the product is sold to a third party, incorporated
into the new home, and allegedly injures itself.”). The Plaintiff also argues that the
express warranty was not a basis of the bargain when it received the Shingles, which
is a requirement for creating an express warranty in North Carolina. Again, it may be
true that no express warranty was created between the Plaintiff and the Defendant. The
argument, however, is that the Plaintiff may sue on the express warranty created
between the Defendant and the original purchaser for whom the express warranty was
a basis of the bargain.
47
Pl.’s Resp. Br., at 17.
48
Pl.’s Resp. Br., at 17 (“The duty exists independent of the contract.
Existence of a contract may . . . establish that the parties owed a duty to each other to
use reasonable care in performance of the contract, but it is not an exclusive test of the
existence of that duty.”) (quoting Oates v. Jag, Inc., 314 N.C. 276, 279 (1985)).
49
See, e.g., Moore v. Coachmen Indus., Inc., 129 N.C. App. 389, 401
(1998) (“North Carolina has adopted the economic loss rule, which prohibits recovery
for economic loss in tort.”).
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claim is subject to the economic loss rule. Accordingly, the Plaintiff’s negligence
claim should be dismissed.
C. North Carolina Unfair and Deceptive Trade Practices Act (“UDTPA”)
The Plaintiff claims that the Defendant violated the UDTPA “when, in selling
and advertising the Shingles, [the Defendant] failed to give Plaintiff . . . adequate
warnings and notices regarding the defects in the Shingles which [the Defendant]
knew or should have known of this defect.”50 To state a claim under the UDTPA, “a
plaintiff must show (1) defendant committed an unfair or deceptive act or practice; (2)
the action in question was in or affecting commerce; and (3) the act proximately
caused injury to the plaintiff.”51 To be clear, however, “a mere breach of contract
claim is not unfair or deceptive . . . absent substantial aggravating circumstances.”52
In fact, “[a] breach of contract, even if intentional, is insufficient to state a UDTPA
claim.”53
Here, the Plaintiff has failed to allege substantial aggravating circumstances
sufficient to state a UDTPA claim. The Plaintiff alleges that the Defendant knowingly
50
Am. Compl. ¶ 113.
51
Ellis, 699 F.3d at 787 (internal quotation marks omitted).
52
Id. (internal quotation marks omitted).
53
Rahamankhan Tobacco Enterprises Pvt. Ltd. v. Evans MacTavish
Agricraft, Inc., 989 F. Supp. 2d 471, 478 (E.D.N.C. 2013) (emphasis added).
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sold it defective Shingles, which is essentially a reiteration of the breach of warranty
claim. Other courts, faced with similar facts, have reached the same conclusion. For
example, in Ellis v. Louisiana-Pacific Corporation, the plaintiffs asserted a UDTPA
claim against the defendant based upon the latter’s sale of defective Trimboard, “a
composite building product designed and marketed for use as exterior trim around
windows and doors.”54 The plaintiffs alleged that the defendant “engaged in unfair or
deceptive acts or practices . . . when, in selling . . . the Trimboard . . . [the defendant]
failed to give [the plaintiffs] . . . adequate warnings and notices regarding the defect
in the Trimboard . . . despite the fact that LP knew or should have known of this
defect.”55 The Fourth Circuit concluded that the plaintiffs had failed to state a UDTPA
claim:
Appellants alleged . . . [that the defendant] fail[ed] to give adequate
warnings and notices about the allegedly defective quality of Trimboard.
. . . [This] allegation simply re-couches [the plaintiffs’] breach of
warranty claim. But North Carolina has held that a breach of contract,
even if intentional, is not sufficiently unfair or deceptive to sustain a
UDTPA claim. . . . In short, [the plaintiffs] allege that [the defendant]
knew that Trimboard would not live up to the terms of the warranty and
should have disclosed this fact to consumers, but this is simply another
way of claiming that [the defendant] breached its express warranty to
consumers.56
54
Ellis, 699 F.3d at 780.
55
Id. at 781.
56
Id. at 787 (internal quotation marks omitted).
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Likewise, in Yancey v. Remington Arms Co., LLC, the plaintiffs asserted several
claims against Remington based upon the latter’s sale of an allegedly defective
semi-automatic rifle.57 To establish a UDTPA claim, the plaintiffs alleged that
“despite Remington’s knowledge of the defect in the . . . semi-automatic rifle,
Remington concealed these problems, and continued to misrepresent the quality,
safety and value of the product.”58 The court rejected this claim:
Plaintiffs have simply not alleged substantial aggravating circumstances
sufficient to state a UDTPA claim. Plaintiffs allege that Remington’s
business practices in . . . marketing . . . the . . . semi-automatic rifle as a
. . . safe . . . product . . . free from defects while misrepresenting its
safety and value constitute unfair or deceptive acts within the meaning
of the UDTPA. These allegations amount to a restatement of Plaintiffs’
breach of warranty claims. . . . Plaintiffs allege that Remington knew that
the . . . semi-automatic rifle . . . would not live up to the terms of the
warranty and should have disclosed this fact to consumers. This
allegation is simply another way of claiming that Remington breached
its express warranty to consumers.59
57
Yancey v. Remington Arms Co., LLC, No. 1:10CV918, 2013 WL
5462205, at *2 (M.D.N.C. Sept. 30, 2013) report and recommendation adopted in part
sub nom. Maxwell v. Remington Arms Co., LLC, No. 1:10CV918, 2014 WL 5808795
(M.D.N.C. Nov. 7, 2014).
58
Id. at *9 (internal quotation marks omitted).
59
Id. at *10 (internal quotation marks omitted).
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Similarly, here, the Plaintiff is alleging that the Defendant knew the Shingles were
defective and should have disclosed this prior to the sale. Like the plaintiffs in Ellis
and Yancey, the Plaintiff is simply re-couching its breach of warranty claim.
In response, the Plaintiff argues that in Coley v. Champion Home Builders
Co.,60 which had “similar facts to those at bar, the North Carolina Court of Appeals
allowed a party’s UDTPA claim to proceed at the pleadings stage.”61 The issue in that
case, however, was not whether the plaintiffs had adequately alleged “unfair or
deceptive” acts or practices. The court made it clear that “[t]he sole issue argued by
the parties . . . is whether plaintiffs have made a sufficient allegation of actual injury
to survive a motion to dismiss.”62 Thus, Coley does not help the Plaintiff. The
UDTPA claim should be dismissed.
D. Equitable Estoppel
In the Amended Complaint, the Plaintiff claimed that the Defendant is equitably
estopped from arguing that the Plaintiff’s claims are time-barred. The Defendant, in
its Motion to Dismiss, argues that the Plaintiff’s allegations do not support an
equitable estoppel argument. There is no reason to resolve this issue now. In moving
60
162 N.C. App. 163 (2004).
61
Pl.’s Resp. Br., at 21.
62
Id. at 165.
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to dismiss, the Defendant does not argue that the Plaintiff’s claims are time-barred.
Thus, the Court need not address the merits of the Plaintiff’s estoppel arguments at
this stage of the litigation.
IV. Conclusion
For these reasons, the Court GRANTS in part and DENIES in part the
Defendant Atlas Roofing Corporation’s Motion for Judgment on the Pleadings [Doc.
4].
SO ORDERED, this 24 day of June, 2015.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
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