Dermatology Specialists of Augusta, Inc. v. Daikin Industries, Ltd. et al
Filing
51
ORDER granting 32 Motion to Dismiss for Lack of Jurisdiction; granting 33 Motion to Dismiss the Amended Complaint. If Plaintiff wishes to proceed forward with this case; Plaintiff shall have 21 days from the entry of this Order to file a second amended complaint. Signed by Judge J. Randal Hall on 02/22/2017. (maa)
IN THE UNITED
STATES DISTRICT COURT
FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
PAWS HOLDINGS,
LLC,
on behalf
*
of itself and all others
*
similarly situated,
*
Plaintiff,
*
v.
*
DAIKIN INDUSTRIES,
LTD.;
CV 116-058
*
DAIKIN APPLIED AMERICAS INC.;
*
and DAIKIN NORTH AMERICA,
*
LLC,
Defendants.
*
ORDER
Before
("DIL")
well
as
Daikin
the
Motion
Court
to
Dismiss
Defendants
North
opposition
to
Defendant
Daikin
for Lack of
Daikin
Americas,
Amended Complaint.
in
is
Applied
LLC's
Personal
Americas
("DNA")
(Docs. 32, 33.)
both motions
Industries,
(docs.
Jurisdiction as
Inc.
(XXDAA")
and
to
Dismiss
the
Motion
Plaintiff
35,
Ltd.'s
36),
filed responses
and Defendants
filed replies in support of their respective motions
(docs. 44,
45) /
have
Accordingly,
Defendants'
fully briefed and are ripe
reasons stated herein,
respective
for the Court's
motions
review.
For
been
the
Defendants' motions are GRANTED.
1 Defendants also filed a Notice of Supplementary Authority in support of
their respective motions to dismiss.
(Doc. 49.)
I. BACKGROUND2
Plaintiff3 alleges in its amended complaint that Defendants
DIL,4
DAA,5
and
ventilation,
DNA6
and
containing a
air
"design,
manufacture
conditioning
component known as
5
3.)
These Daikin Coils
with aluminum
fins
heating,
(XHVAC
units
sell
Units')
an evaporator coil manufactured
with copper tubing (xDaikin Coils')."7
5,
and
consist
(Amended Complaint, Doc.
of
copper
tubing affixed
secured thereon by aluminum bands
that wrap
around the tubing.
The Daikin Coils contain "a refrigerant that
absorbs
surrounding
heat
process."
from
(Id.
St
4.)
air,
cooling
The trapped heat
is
the exterior of the building to the outside.
Plaintiff alleges,
perform
"their
however,
intended purpose
that
of
the
air
the
then expelled from
(Id. SI 10.)
the Daikin Coils
cooling
in
air
.
.
fail
to
. because
2 When reviewing a Rule 12(b)(6) motion to dismiss, courts must accept the
allegations in the complaint as true and construe them in the light most
favorable to the plaintiff.
Belanger v. Salvation Army,
(11th Cir. 2009) (citing Jackson v. BellSouth Telecomm.,
(11th Cir.
556 F.3d 1153,
372 F.3d 1250,
1155
1262
2004)) .
3 Plaintiff is a Georgia limited liability company with its principal place of
business in Georgia.
(Am. Compl. St 1.)
4 DIL is a Japanese corporation with its principal place of business in Japan.
(Am. Compl. St 2; see also Declaration of Takatoshi Kondo, Doc. 32-2, SI 2.)
5 DAA is a Delaware corporation with its principal place of business in
Minnesota.
(Declaration of Daniel R. Donoghue, Doc. 33-3, St 2.)
6 DNA is a Delaware limited liability company with its principal place of
business in Texas.
(Declaration of Lee J. Smith, Doc. 33-3, St 2.)
DNA's
single member, Goodman Global Holdings,
Inc., is a Delaware corporation with
its principal place of business in Texas.
(Id. St 3. )
7 While Plaintiff has defined the HVAC evaporator coils at issue as "Daikin
Coils," Defendants contend that this terminology is "coined for the purposes
of litigation" and "does not refer to any specific product."
(Doc. 33-1, at
7.)
For the purposes of this Order, the Court adopts the term Daikin Coils
without concluding that the relevant HVAC evaporator coils - or at least
their design and/or manufacture - are unique to Defendants' HVAC products.
they corrode and leak refrigerant well before the expiration of
their useful life."
(Id.
St 5.)
Plaintiff further alleges that:
The failure of Daikin Coils to perform as intended is
an unavoidable consequence of their design.
As a
result
of
their manufacturing process,
the
copper
tubes in the Daikin Coils are prone to xx formicary
corrosion."
This process causes microscopic holes
within the tubing that cause the Daikin Coils to leak
refrigerant and ultimately fail.
The corrosion and
failure
of
Daikin
Coils
are
due
to
Defendants'
actions, including but not limited to, selecting the
wrong alloy,
defective manufacturing of the Daikin
Coils, and failing to properly ensure that the Daikin
Coils will perform for their useful life and are fit
for
their intended purpose.
Defendants designed,
created product materials for, designed instructions
for, caused the manufacture of, and sold HVAC units
containing Daikin Coils that were installed in homes
throughout
Georgia,
including
Plaintiff's
and
the
Class's homes.8
(Id.
SI
rarely
6.)
In
needs
deplete
from
a
to
properly-functioning HVAC
be
use"
replaced,
and
because
*evaporator
unit,
refrigerant
*refrigerant
coils
are
does
designed
to
sealed systems such that the refrigerant cannot escape."
11.)
not
be
(Id. St
In contrast, Daikin Coils begin to corrode "as soon as the
Daikin
Coils
conditions,"
are
which
put
in
to
turn
use
under
causes
the
normal
Daikin
environmental
Coils
to
"leak
8 (See also Am. Compl. SI 12 ("The Daikin Coils are defectively manufactured
and designed using defective copper tubing.
As a result of their intended
design and the chosen alloy from which they are made, Daikin Coils are
particularly susceptible to formicary corrosion and leaking of refrigerant
due
to
said
corrosion.
Named
for
its
tendency
to
manifest
in
branching
microscopic tunnels, formicary corrosion forms in Daikin Coils, resulting in
microscopic holes that allow the gaseous refrigerant to escape. Corrosion in
Daikin Coils begins as soon as the Daikin Coils are put to use under normal
environmental
conditions-the
same
conditions
Defendants
intended
that
the
Daikin Coils perform under. The result is that Daikin Coils leak refrigerant
at an ever increasing rate within months of installation, dramatically
diminishing the useful life of the product." (footnote omitted)).)
refrigerant
at
installation,
product."
an
ever
increasing
dramatically
(Id.
5
rate
diminishing
12.)
Indeed,
the
"at
the
sold
and
widely
that
copper
evaporator
coils
formicary
corrosion"
and
susceptible
to
designs
the
for
[Daikin Coils]
that
the
safety
risks"
Daikin Coils
because
life
time
Daikin
of
that
the
Defendants
Coils,"
were
of
it
was
"particularly
"[a]lternative
were available and feasible at
the time of [their] manufacture."9
alleges
the
months
useful
manufactured,
known
distributed
within
(Id. M
13, 119.)
"expose consumers
"[l]eaked
refrigerant
can
Plaintiff
to health and
cause
severe
injury if inhaled or if it comes in contact with skin or eyes."
(Id. 5 15.)
Plaintiff also alleges that "leaked refrigerant can
cause damage to surrounding property."
further
alleges
that
the
environment"
by
refrigerant]
that is thousands
(Id.
"emitting
Daikin
a
(Id.
Coils
greenhouse
1 16.)
"also
gas
Plaintiff
damage[]
[i.e.,
the
the
leaked
of times more potent than C02."
I 17.)
In March
system
Georgia.
in
2010,
Plaintiff
its
medical
(Id.
SI
19.)
purchased and
offices
This
building
installed an HVAC
located
HVAC system was
in
comprised
nineteen HVAC units which were allegedly "manufactured,
9 Plaintiff alleges that
Evans,
of
sold and
"Defendants were provided actual or constructive
notice of defects in the Daikin Coils by and through direct communications
with Plaintiff and Plaintiff's agents, as well as numerous complaints from
consumers, warranty claims, and various writings in trade publications and
scientific journals regarding the issue of formicary corrosion of copper
evaporator and condenser coils." (Am. Compl. SI 75.)
distributed by Defendants"
installer."10
and will
(Id.)
continue
Daikin Coils"
and "installed by a
Daikin-certified
Plaintiff alleges that it has suffered -
to
suffer -
harm
"as a
result
of
the defective
(and their alleged corrosion and resulting leaking
of refrigerant)
which have caused Plaintiff's HVAC units to
"no
longer adequately cool air," which in turn have caused Plaintiff
to incur "out-of-pocket repair and service costs," have devalued
the
HVAC
units
"diminish[ed]
(Id.
M
for
which
Plaintiff's
Plaintiff
property
bargained,
value
unless
and
have
replaced."11
20-23.)
On
December
Takayuki
Inoue,
11,
the
2 015,
Plaintiff
"mailed
a
senior vice president of
letter"
the
SVP,
to
Mr.
VRV and
Light Commercial division of DNA, in which Plaintiff allegedly:
(a)
identified himself;
(b)
in its Daikin HVAC units;
described the nature of
(c)
the defect
described the damages incurred as
10 Plaintiff alleges that its nineteen-unit HVAC system is comprised of: (a)
two outdoor VRV III Inverter Units,
interior units.
(Am.
Compl.
model no.
SI 19.)
RXYQ120PTJU;
Plaintiff
has
model name and/or number of the seventeen interior units.
assert,
without
factual
support,
that
w[o]utdoor
and
(b)
seventeen
failed to identify the
units
Notably,
such
as
DAA & DNA
the
one
specified by Plaintiff contain condenser coils" which they contend are
*fundamentally different component[s] from evaporator coils that serve[]
different purpose[s]" and further that "Plaintiff alleges no defects in any
Daikin-brand
condenser
coils."
(Doc.
33-1,
at
12
n.5.)
In
response,
Plaintiff asserts, again without factual support, that *[c]ondenser coils are
also composed of copper-tubing, carry liquid (as opposed to gaseous)
refrigerant, and function to expel heat from building interiors" and that
"Plaintiff's exterior units have failed in the same manner as the interior
units."
(Doc. 35, at 12 n.2.)
While the Court is obligated to take
Plaintiff's factual claims at face value during its present review, Plaintiff
may wish to address and clarify this issue in any future amendments to its
Amended Complaint that it may file.
11 (See also Am.
Compl.
St 20 ("To date,
Plaintiff has replaced the Daikin
Coils in four (4) of the seventeen (17) interior HVACs and in both of the
exterior HVAC units.
Based on past failures, the remaining coils will most
likely require replacement in the near future.").)
a result of the Daikin Coils;
from Defendants."12
(Id.
and (d) "requested adequate relief
5 76.)
response to its December 11,
Dr.
Sanders R.
January 4,
reply
Callaway,
2016.
email
to
(Doc.
May
10,
1.)
On
Callaway
May
asserts
the
Plaintiff
16,
Complaint.
2016,
(Doc.
Magnuson-Moss Warranty Act,
(6)
strict
filed
its
Jurisdiction
12(b)(2).
motion
to
(Doc.
32.)
dismiss,
had
received
instant
filed
for relief:
case.
its
operative
Amended
Complaint
(1)
violation of
the
("MMWA");
(3) breach of implied warranty
(5)
strict liability
(8)
negligence;
attorney's
Motion
pursuant
Inoue sent a
he
the
Plaintiff's
pursuant to O.C.G.A. § 13-6-11.
DIL
Inoue on
(Id.)
liability - manufacturing
including
a
breach of implied warranty of fitness
liability - design defect;
litigation,
receive
15 U.S.C. § 2301, et seq.
for a particular purpose;
warn;
that
Plaintiff
(2) breach of express warranties;
(4)
Mr.
instituted
5.)
following claims
of merchantability;
not
Plaintiff's co-owner,
2016,
confirming
2015 letter.
2016,
Amended
2015 letter,
On January 6,
Plaintiff's December 11,
On
it did
sent a follow-up email to Mr.
(Id.)
Dr.
When
to
to
fees,
Federal
for
Rule
That same day,
alleging
lack
of
failure to
defect;
and
(7)
(9)
costs,
(See id.)
Dismiss
-
strict
expenses of
and
expenses,
On August 12, 2016,
Lack
of
of
Civil
Personal
Procedure
DAA and DNA filed their
standing
12 Plaintiff did not attach a copy of the December 11,
other correspondence to its Amended Complaint.
(i.e.,
2015
lack
of
letter or any
subject matter jurisdiction),
failure
to
state
a
claim
lack of personal jurisdiction,
upon
which
relief
can
be
granted,
pursuant to Federal Rules of Civil Procedure 12(b)(1),
and 12(b)(6), respectively.13
II,
Federal
Rule
of
and
12(b)(2),
(Doc. 33.)
LEGAL
Civil
STANDARD
Procedure
8(a)
requires
that
a
plaintiff's complaint contain both "a short and plain statement
of
the
grounds
plain
for
statement
the
of
the
entitled to relief."
party
thus
alia,
a
12(b)(1),
of
jurisdiction"
claim
showing
Fed. R. Civ. P.
may move
lack
court's
to
dismiss
the
subject-matter
and
that
"a
8(a)(1) —(2).
complaint
jurisdiction,
and
pleader
the
short
is
A
responding
based
Fed.
inter
on,
R.
Civ.
P.
lack of personal jurisdiction, Fed. R. Civ. P. 12(b)(2),
or a failure to state a claim upon which relief can be granted,
Fed. R. Civ. P.
12 (b) (6) .
A.
"Because
MOTION TO DISMISS FOR LACK OF STANDING
a
motion
to
dismiss
for
lack
of
standing
is
one
attacking the district court's subject matter jurisdiction,
is brought pursuant
to Rule 12(b) (1)."
Timber Purchasers Council v. Alcock,
Cir.
1993)
Ponce Inlet,
(citations
omitted);
405 F.3d 964, 974
see
Region 8 Forest
993 F.2d 800,
also
Bochese
(11th Cir.
2005)
13 DIL did not join in DAA/DNA's motion to dismiss.
accepted
service
of
the
Summons
and Complaint
807 n.8
for
v.
at 3,
fn.l.)
Serv.
(11th
Town
of
("Standing is a
DIL avers that it "has
the
sole purpose
determining whether this Court has personal jurisdiction over DIL."
32-1,
it
of
(Doc.
threshold jurisdictional question which must
to
and
independent
of
the merits
of
a
party's
assessing standing on a motion to dismiss,
"presume
the
plaintiff's
Orthodontics,
243,
245
accept as
Kawa
Sec'y,
Cir.
U.S.
2014)
555,
true all
U.S.
561
allegations
Dep't of the Treasury,
(citing
(1992)).
material
Lujan
(citing
Warth
v.
allegations
Seldin,
422
v.
Further,
must construe the complaint in favor of
Id.
a district court must
those
LLP v.
504
In
embrace
(11th
Wildlife,
claims.")-
that are necessary to support the claim."
specific facts
general
be addressed prior
U.S.
of
Defenders
the
the
773 F.3d
court
of
"must
complaint,
and
the complaining party."
490,
501
(1975)
("For
purposes of ruling on a motion to dismiss for want of standing,
both
the
material
trial
and
reviewing
allegations
of
the
courts
must
complaint,
and
accept
must
as
true
all
construe
the
complaint in favor of the complaining party.")).
B.
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
"In the context of a motion to dismiss for lack of personal
jurisdiction
in
which
no
evidentiary
hearing
is
held,
the
plaintiff bears the burden of establishing a prima facie case of
jurisdiction over the movant, nonresident defendant."
SSE,
Inc.,
843 F.2d 489,
492
(11th Cir.
1988).
Morris v.
The plaintiff
establishes a prima facie case by presenting "enough evidence to
withstand a
motion
F.2d
1514
1510,
evidence
to
for directed verdict."
(11th
Cir.
1990).
withstand a motion
or
8
A
Madera v.
party
Hall,
presents
directed verdict
916
enough
by putting
forth
that
"substantial
reasonable
impartial
evidence
and
fair-minded
judgment might
reach
v. Nations Bank of Florida,
In
assessing
jurisdiction,
are
taken
the
as
a
facts
true
(11th
Cir.
such
persons
to
the
v.
extent
the
and weight
exercise
conclusions."
1554
dismiss
in
quality
in
different
presented
to
1990)
of
53 F.3d 1548,
motion
Cable/Home Commc'n Corp.
855
...
the
lack
of
plaintiff's
they
are
omitted).
1995).
personal
complaint
uncontroverted.
Network Prods. , Inc. , 902
(citations
Walker
(11th Cir.
for
of
If
F.2d 829,
the
defendant
submits affidavits challenging the allegations in the complaint,
however,
the
burden
shifts
back
to
evidence supporting jurisdiction.
v.
Food
2010) .
Movers
If
conflict
construe
Id.
the
with
all
Intern.,
plaintiff's
the
reasonable
C.
plaintiff
Diamond Crystal
593
F.3d
complaint
defendant's
(citing Meier v.
(11th Cir.
Inc.,
the
1249,
and
in
Sun Int'l Hotels,
favor
1257
Ltd.,
the
of
produce
Brands,
(11th
supporting
affidavits,
inferences
to
Cir.
evidence
court
the
Inc.
must
plaintiff.
288 F.3d 1264,
1269
2002)) .
MOTION TO DISMISS FOR FAILURE TO STATE A
CLAIM UPON WHICH
RELIEF CAN BE GRANTED
To
must
survive a
include
Rule
enough
12(b)(6)
xx factual
motion
to
allegations
dismiss,
to
raise
a
complaint
a
right
relief above the speculative level," and those facts must
a
claim to
Corp.
v.
relief
Twombly,
that
550
is
U.S.
plausible
544,
545,
on
its
570
face."
(2007).
to
"state
Bell
Atl.
Although a
complaint
attacked
buttressed
by
by
a
detailed
pleading
*requires
formulaic
recitation of
not
do."
more
Id.
than
at
an
accusation."
Rule
factual
more
than
the
555.
labels
The Rule
Ashcroft
motion
allegations,
elements
unadorned,
(quoting Twombly,
12(b)(6)
and
of
a
need
the
not
plaintiff's
conclusions,
cause
8 pleading
of
be
and
a
action will
standard
"demands
the-defendant-unlawfully-harmed-me
v.
Iqbal,
556
U.S.
662,
678
(2009)
550 U.S. at 555) .
A complaint should not be dismissed for failure to state a
claim,
however,
"unless
it
appears
beyond
a
doubt
that
the
plaintiff can prove no set of circumstances that would entitle
him to
relief."
Conley v.
see also Robinson v.
Gibson,
United States,
355 U.S.
41,
45-46
484 F. App'x 421,
(1957);
423
(11th
Cir. 2012)
(quoting Lopez v. First Union Nat'1 Bank of Fla.,
F.3d 1186,
1189
(11th Cir.
accept as true all
all
reasonable
plaintiff.
(11th
F.3d 1250-,
inferences
2009)
1262
v.
in
the
Salvation
(citing
(11th Cir.
Jackson
stage,
courts must
light
Army,
v.
most
556
favorable
F.3d
BellSouth
to
1153,
Telecomm.,
the
1155
372
2004)).
Ill,
A.
At this
facts alleged in the complaint and construe
Belanger
Cir.
1997)).
129
DISCUSSION
DIL#S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
DIL
contends
that
this
Court
lacks
personal
jurisdiction
over it because Plaintiff cannot satisfy either the Due Process
10
Clause of the Fourteenth Amendment or Georgia's long-arm statute
-
both
of
which
are
jurisdiction over
DIL.
subsidiary,
required
As
non-party
for
well,
Daikin
the
Court
while
Applied
conceding
Georgia
transact business in Georgia,
DIL maintains
of
to
DAG
alone
is
insufficient
confer
and that the separate and independent
precludes
support
imputing
of
its
DAG's
motion
contacts
to
Declaration of Takatoshi Kondo,
exercise
that
its
("DAG"),
may
that its ownership
jurisdiction over
DIL,
nature of the companies
with
dismiss,
to
Georgia
DIL
to
has
DIL.
In
submitted
DIL's Legal Officer,
the
who states,
inter alia:
•
DIL's design and manufacturing activities for its HVAC
products take place exclusively in Japan or outside
the United States.
•
DIL does not design, manufacture, advertise,
products in Georgia or the United States.
•
DIL
•
•
•
does
not
control
sales
or
distribution
or
sell
of
its
products within the United States, including how many
products are sold in Georgia.
DIL does not design products specifically for the
Georgia market or sell its products to a distributor
specific to the Georgia market.
DIL does not perform services in Georgia or derive
revenue from any services performed in Georgia.
DIL is not the warrantor for any warranty
consumers in Georgia or the United States.
(Kondo
Decl.,
Doc.
32-2,
Jl
3-6,
12,
14.)
offered
Mr.
Kondo
to
further
attests that DIL does not maintain - nor does it have employees
who
maintain
business
in
-
an
office
Georgia,
in Georgia,
does
not
11
have
is
a
not
registered
registered
to
agent
do
in
Georgia,
does
not
pay
property in Georgia.
taxes
(Id. M
In opposition,
over
because:
7-11,
Plaintiff
DIL
in Georgia,
is
proper
satisfied as
DIL
(either
from
process
is
either
or
directly
revenue
has
through
goods
used
satisfied as
the benefits
of
or
not
own real
13.)
argues
(1)
and does
that personal
Georgia's
long-arm
transacted business
DAG)
or
consumed
has
in
jurisdiction
statute
within Georgia
derived
Georgia;
substantial
and
(2)
due
DIL has purposefully availed itself
transacting business
is
of
in Georgia by distributing
and deriving substantial profits from its products purchased and
used
in
claims
Georgia
arise
exercise of
and
(either
out
of
directly
DIL's
or
through
forum-related
DAG),
Plaintiff's
activities,
justice.
In
support
of
its
allegations,
Plaintiff has attached the Declaration of Graham B.
Plaintiff's counsel,
or printouts
of
who attaches thereto copies of
DAG's
website as well
as news
to DNA's manufacturing activities and DIL's
DAA (f/k/a McQuay International).
explicitly
concedes,
however,
analysis.
United
(11th Cir.
2 009) .
the
Techs.
First,
Court
that
(Doc.
Corp.
v.
the Court
12
must
Mazer,
must
screenshots
related
2 006 acquisition of
this
36,
36-1.)
Court
is
perform
556
Doc.
would
at 5.)
To determine whether a nonresident defendant
jurisdiction,
Lippsmith,
articles
(Lippsmith Decl.,
not have general jurisdiction over DIL.
personal
the
jurisdiction would otherwise comport with fair play
substantial
Plaintiff
and
F.3d
subject to
a
two-part
1260,
determine whether
1274
the
exercise
of
personal
jurisdiction
is
proper
under
the
forum
state's long-arm statute as that statute would be interpreted by
the state's Supreme Court.14
whether
state
there
to
are
sufficient
satisfy
Amendment.
Id.
the
Id. ;
Due
lnt'1
"minimum contacts"
Process
Shoe
Unemployment Comp. & Placement,
Here,
Georgia's
Plaintiff
Next, the Court must determine
argues
long-arm statute,
Clause
Co.
v.
with
of
the
the
forum
Fourteenth
Washington
Office
of
326 U.S. 310 (1945).
that
subsections
O.C.G.A.
§
(1)
9-10-91,
and
are
(3)
of
satisfied.
Georgia's long-arm statute states in relevant part:
A
court
of
this
state
may
exercise
personal
jurisdiction over
any nonresident
or
his
or
her
executor or administrator,
as to a cause of action
arising from any of the acts, omissions, ownership,
use, or possession enumerated in this Code section, in
the
same
this
manner
state,
if
as
if
he
in person
or
or
she
were
through
a
an
resident
agent,
he
of
or
she:
(1) Transacts any business within this state;
[or]
(3) Commits a tortious injury in this state caused
by an act or omission outside this state if the
tort-feasor regularly does or solicits business, or
engages in any other persistent course of conduct,
or derives substantial revenue from goods used or
consumed or services rendered in this
O.C.G.A.
§ 9-10-91(1)
&
state.
(3).
14 The Eleventh Circuit has held that "the Georgia long-arm statute [O.C.G.A.
§
9-10-91]
does
not
grant
courts
in
Georgia personal
jurisdiction
that
is
coextensive with procedural due process," but instead *imposes independent
obligations that a plaintiff must establish for the exercise of personal
jurisdiction that are distinct from the demands of procedural due process."
Diamond Crystal Brands, Inc., 593 F.3d at 1259.
MC]ourts must apply the
specific limitations and requirements of O.C.G.A. § 9-10-91 literally and
must engage in a statutory examination that is independent of, and distinct
from, the constitutional analysis to ensure that both, separate prongs of the
jurisdictional inquiry are satisfied."
Id.
13
at 1263.
To
exercise
jurisdiction over a nonresident defendant who
transacts business within Georgia
(i.e.,
9-10-91(1)),
establish
a
plaintiff
must
pursuant
to O.C.G.A.
that:
M(l)]
§
the
nonresident must have purposefully done an act or consummated a
transaction
in
Georgia;
[(2)]
the
cause
of
action must
from or be connected with such act or transaction;
exercise of
offend
jurisdiction by the courts
traditional
[notions
justice."
Gateway
S.E.2d 750,
757
of]
Atlanta
Apartments,
Ct.
App.
2008)
Inc. , 601 S.E.2d 163,
163
(Ga.
Ct.
interpret
the
first
this
fairness
(Ga.
broadly
of
v.
of
2004)).
this
substantial
Harris,
analysis
the nonresident
nor
a
contacts
with
"the
the
Consulting Servs.,
352,
355
631
(Ga.
State
[of
LLC v.
2005);
S.E.2d 734,
importance
739
see
(Ga.
of
First Nat'1
also
Ct.
Aero
App.
as
Innovative
Bank of Ames,
Toy
Store,
2006)
("[A]
CRI,
LLC
neither
in Georgia"
nonresident's
Georgia]."
660
Georgia courts
requiring "the physical presence of
minimizing
the
state must not
and
Inc.
[(3)]
(citing Robertson v.
App.
prong
and
arise
intangible
Clinical
620
v.
&
S.E.2d
Grieves,
single event may
be a sufficient basis for the exercise of long arm jurisdiction
if
its
effects
within
the
forum
are
substantial
enough
even
though the nonresident has never been physically present in the
state."
(citing
(Ga. Ct. App.
1264
(MA]
Shellenberger
v.
Tanner,
227
1976))); Diamond Crystal Brands,
nonresident's
mail,
14
telephone
S.E.2d
Inc.,
calls,
266,
593
and
266
F.3d at
other
'intangible'
physically
acts,
though
outside
of
Innovative Clinical,
prong requires
occurring
Georgia,
while
must
the
be considered."
620 S.E.2d at 355-56)).
the Court to
defendant
is
(citing
As such, the first
"examine all of a nonresident's
tangible and intangible conduct and ask whether it can fairly be
said
that
the
Georgia."
Because
nonresident
Diamond
such a
Crystal
reading of
expand the personal
permitted
by
prong
transacted
Brands,
the
any
Inc.,
business
593
F.3d
due
Georgia
process,"
S.E.2d
Court
at
"to
737) .
exercise of
i.e.,
to
determine
If
applies
Innovative
whether
the
'fortuitous1
Aerospace,
or
S.E.2d at 757
the
the
that
first
final
it
does
'attenuated'
Inc.,
prong
752
not
576
S.E.2d
(Ga.
222,
prongs
"to
Ct.
224
minimum contacts,
App.
(Ga.
2009));
1990)
Gateway Atlanta
are
135,
139
LLC v.
satisfied,
determine
result
contacts."
S.E.2d
is
a
whether
solely from
Ct.
has
v.
App.
Stamm Mfg.,
defendant
the
the
—
'random,'
Lima Delta Co.
(Ga.
631
'reasonable'
see also Beasley v.
("If
has
(citing Aero Toy Store,
two
(quoting ATCO Sign & Lighting Co.,
571,
Clinical,
nonresident
jurisdiction over the nonresident
ensure
"would
it must be considered in conjunction with the
Inc. , 660
then
1264.
courts beyond that
established minimum contacts with the State."
Apartments,
within
at
first prong in isolation
jurisdiction of
constitutional
620 S.E.2d at 355,
second
has
Glob.
2013)
680 S.E.2d
Beasley,
396
established
the court may then evaluate other factors that
15
impact on the reasonableness of asserting jurisdiction,
the
burden
on
adjudicating
convenient
defendant,
the
the
dispute,
and
forum
plaintiff's
effective
relief,
state's
interest
interest
the
such as
in
in
obtaining
interstate
judicial
system's interest in obtaining the most efficient resolution of
controversies,
and
the
shared
interest
of
the
states
in
furthering substantive social policies.").
Notably,
where
a
parent
corporation
and
its
"maintain separate and distinct corporate entities,
subsidiary
the presence
of one in a forum state may not be attributed to the other"
for
personal
755
jurisdiction
S.E.2d 850,
Holding,
(N.D.
854
LLC,
Ga.
(Ga.
No.
Feb.
purposes.
Ct.
fact,
20,
however,
merely
2014)
2002)).
a
is
"[I]f
Corp.
2002
or
WL
the parent's
so complete that,
division
v.
Wright,
(citing Vogt v.
CIV.A. 1:01-CV0311JOF,
subsidiary's activities
in
App.
Drumm
534542,
control
at
over
of
the
2009)).
based
Melia,
SA v.
Brown,
To assert personal
on
the
"[g]enerally
. .
conduct
of
doing business through its
688
S.E.2d
675
jurisdiction over a
its
. demand proof
subsidiary,
of
the
parent,"
subsidiary in the forum state for jurisdictional purposes.
(quoting Sol
*4
the subsidiary is,
department
the parent may be viewed as
Greenmarine
control
(Ga.
Ct.
Id.
App.
parent
company
Georgia
courts
by the parent over
the internal business operations and affairs of the subsidiary .
. . . [and]
the degree of control exercised by the parent must
16
be greater
than that normally associated with common ownership
and directorship."
Activities
Id.
insufficient
include "monitoring of
of
the
subsidiary's
articulation
of
Here,
in
its
ignores,
Mr.
926
that
(9th Cir.
it
has
the O.C.G.A.
Daikin
and
Daikin
see
also
that
this
affidavit.
the
Coils
Am.
to
(See
Kondo
burden
DIL
1S[
allegation
is
on
the
Doc.
in
Plaintiff
which
Indeed,
the only evidence put forth by Plaintiff
its
it
DIL - let alone mention any purposeful act
in
complaint
other
-
Georgia
than
at
a
the
2006
17
time
news
of
units
Georgia."
Plaintiff
to
M
4-6,
produce
Diamond Crystal
has
failed
opposition to DIL's motion to dismiss makes
consummated
HVAC
32-2,
Inc. ,
1257,
state
directly rebutted by
Brands,
at
purposely
12.)
jurisdiction,
F.3d
burden
analysis by
brand
evidence supporting its claims of
593
and
(citing
its
"has
in
8,
Decl.,
is
supervision
2001)).
customers
Compl.
*4) .
parent
Id.
§ 9-10-91(1)
distributing
Accordingly,
the
satisfied
that
at
decisions,
procedures."
business
6;
over
budget
solicited
however,
Kondo's
14.)
avers
defective
at
and
248 F.3d 915,
selling
36,
capital
regularly
Georgia
534542,
jurisdiction
Complaint
and
containing
WL
Amended
transacted,
by
and
policies
first prong of
alleging
confer
2002
the subsidiary's performance,
general
Plaintiff
under the
to
finance
Doe v. Unocal Corp.,
(Doc.
(citing Vogt,
to
do.
in support of
no
mention of
done or
transaction
Plaintiff
article
served
regarding
its
DIL's
announcement of its acquisition of a Malaysian-based global HVAC
company that owned a United States-based HVAC
36-1,
Ex.
D.)
Moreover,
conclusory manner,
and
distinct
that
corporate
transacted business
would allow that
Plaintiff
DIL has
entity
-
any
let
entity's
jurisdictional purposes.15
not
pled,
(Doc.
even
in
a
failed to maintain a separate
from
in Georgia
other
has
company.
other
entity
Therefore,
alone
to
to
acts
imputed to
be
the
has
that
extent
that
DIL
for
the exercise of personal
jurisdiction over DIL would not be appropriate under Subsection
1 of Georgia's long-arm statute.
To
exercise
pursuant
that
to
the
jurisdiction
O.C.G.A.
defendant
§
9-10-91(3),
M(l)]
[Georgia]
[(2)]
[and (3)]
the tort-feasor
goods
used or
91(3).
over
Notably,
a
or
nonresident
plaintiff
commit[ted]
caused by an act
consumed
a
a
defendant
must
tortious
establish
injury
omission outside
in
[Georgia]
. . . derives substantial revenue from
...
in
[Georgia]."
O.C.G.A.
§
9-10-
suffering purely economic losses alone does not
15 Plaintiff avers that *since the filing of the Amended Complaint, Plaintiff
has discovered that [DIL] owns an additional American subsidiary, [DAG] . . .
According to Plaintiff, *[DAG] is a distributor that is
."
(Doc. 36, at 8.)
located in Georgia, serves the Georgia market, and is, in fact, the vendor
through which [DIL's] products are distributed in Georgia.
In this manner,
[DIL] directly targets the Georgia market, conducts substantial business in
Georgia, derives substantial revenue from
purposefully avails itself of the
thus,
Georgia."
(Id.
at
9. )
As
previously
products
benefits
noted,
sold in Georgia, and,
of doing business in
however,
the
actions
of
a
subsidiary cannot be imputed to the parent company for jurisdictional
purposes without "proof of control by the parent over the internal business
operations and affairs of the subsidiary . . . greater than that normally
associated with common ownership and directorship."
See Drumm Corp., 755
S.E.2d at 854 (quoting Vogt, 2002 WL 534542, at *4) .
Plaintiff has not
alleged nor pled such a degree of control over DAG by DIL that would allow
the Court to impute DAG's Georgia-related activities to DIL.
18
constitute a *tortious injury" under Georgia law.
Fish,
Inc. v. Thomco Specialty Prod.,
See Squish La
Inc., 149 F.3d 1288, 1291
(11th Cir. 1998) ("Georgia's economic loss rule bars recovery in
tort for purely economic losses.
x[Ajbsent personal injury or
damage to property other than to the allegedly defective product
itself an action in negligence does not lie and any such cause
of action may be brought only as a contract warranty action.'"
(quoting Advanced Drainage
604,
607
(Ga. Ct.
Nat' 1
Corp. ,
where
the
economic
from
App.
724
in
seeking
theories.
53,
59
(Ga.
the
economic
recovery
'Economic
v.
Lowman,
under
loss'
Ct.
are purely
strict
means
rule
bars
liability
damages
replacement of the defective product,
to
for
[economic]
loss
to
Courts
the
602,
accident,
604-05
and
pecuniary one,
or
the
no
or
the
plaintiff
negligence
loss
of
the
costs of repair or
or the consequent loss of
Ct.
physical
of
relegated
of
those who
contract
suffer
law."
loss
App.
damage,
of
("Where
and
the
the value
repairing it,
19
1975)
the
courts
Inc.,
there
only
or use
such
(quotations
Long v. Jim Letts Oldsmobile,
(Ga.
through
cost
have
remedies
and citations omitted));
sold,
the
unaccompanied by any claim of personal injury or damage
other property.
S.E.2d
Inc. v. Wabash
("In cases
value or use of the defective product itself,
profits,
S.E.2d
2012)
loss
App.
437
defective product
resulting from a
nature,
Inc.
1993)); Home Depot U.S.A.,
S.E.2d
losses
Systems,
of
loss
the
is
is
217
no
a
thing
have adhered to
the
rule
that
protection
recovery.
purely
against
Here,
economic
mere
in
While
value,
only
sympathize
we
negligence,
Long's
diminution
interests
and
of
with
entitled
to
so
have
denied
the
claimed
pocket
Long
not
and
damages
out
are
are
expenses
for
the
economic;
for
repairs.
aggravation
and
inconvenience he has suffered because of the defects in the car,
such inflictions are not compensable elements of damages in this
case,
in
and his only remedy for the pecuniary damages suffered is
contract.");
Unistrut
Georgia,
Inc. , 217 S.E.2d 611,
612
a
his
defendant
domes
free
arising
not
breached
of
optical
solely
allege
from
(Ga.
commission
Ct.
duty
of
a
-
v.
App.
to
distortion
contract
Inc.
1975)
provide
alleged
not
(XXA tort is
tortious
injury
In
this
case,
Plaintiff
burden under
the
its
Complaint
Amended
O.C.G.A.
§
that
avers
breach
law -
in
plexiglass
of
and
the
a
duty
thus
did
state
for
see also O.C.G.A.
the unlawful violation of
other than a mere breach of contract,
a
Plastics,
(allegations that
certain
outside
purposes of Georgia's long-arm statute);
1-1
Faulkner
§ 51-
a private legal right
express or implied.").
that
9-10-91(3)
it
has
analysis
"Defendants'
satisfied
by alleging
Daikin
HVAC
that
these
Defendants
HVAC
and that
derived
units
-
in
products
containing Daikin Coils were used and consumed by customers
the state of Georgia"
its
in
xx[i]t may be reasonably inferred
substantial
including
20
revenue
Plaintiff's
from
the
sale
nineteen-unit
of
VRV
systems."
(Doc.
36 at 7-8.)
As an initial matter, the Court
notes that Plaintiff has not pled, even in a conclusory fashion,
that
DIL
has
consumed
in
derived
substantial
Georgia.
(Cf.
Am.
revenue
Compl.
goods
from
St
8
used
(* Defendants
or
are
subject to personal jurisdiction in this Court pursuant to Fed.
R.
Civ.
P.
4
and
derive substantial
. . . ."
O.C.G.A.
§
9-10-91
in
that
they
...
from services rendered in this
revenue
(emphasis added));
Kondo Decl. , Doc.
32-2,
1 12
(4)
state
(XXDIL
does not perform services in Georgia or derive revenue from any
services performed in Georgia.").)
however,
the
reasonably
Court
infer
would
that
Even if it had pled as much,
have
evidence
sale
the
no
from
of
xxDefendants'
which
Daikin
to
HVAC
products
containing Daikin Coils used and consumed by customers
in
State
the
substantial
regarding
other
actual
defendants
or
to
(Doc.
DIL;
revenue,
36
at
Plaintiff
if
non-parties,
any,
regarding
from
the
(xx Although
[the
the
offers
resulted
no
or
749 F. Supp.
nonresident
of
DIL's
goods.
See
2d 1352,
(or
even
collectively
defendant
evidence
showing
that
21
[the
any
revenue
(N.D. Ga.
manufacturer's]
may derive substantial revenue from Georgia,
no
overall
Exceptional
1364
in
evidence
derived by DIL
individually
proportion
aforementioned
Inc. v. Jones,
produced
8),
from the aforementioned goods or more importantly,
information
derived
Georgia,"
revenue
the
with DIL)
Grp.,
of
Mktg.
2010)
clients
[the plaintiff] has
nonresident
defendant
manufacturer]
Thus,
to
derives
[the nonresident
personal
Wild Trees
*3
Textiles
(M.D.
construe
Ga.
all
under
Jordan
Co.,
Apr.
9,
reasonable
establishing
that
derived substantial
distributor]
(emphasis
CAR,
has
No.
4:12-CV-297
2014)
2012
WL
(xx Plaintiff s
Hicon's
sold
2931261,
are
revenue
favor,
unable
that
at
to
revenue
(also unknown),
cannot,
therefore,
derives
is
of
that
conclude
Ltd.
2014
the
the
overcome these issues,
Hubei
1389042,
strains
scarce
to
evidence
manufacturer]
to
(M.D.
Georgia
Inc.,
Ga.
the
residents."
No.
5:11-CV-218
July
18,
portion
2012)
of
Ningbo
to
when compared to Ningbo Hicon's
is
that
Moreover,
v.
WL
Court
substantial.
the
revenue
.
even
if
Plaintiff
it has not alleged a
occurred in Georgia because the only losses
.
. The
Court
Ningbo
that
substantial without any indication as
revenue.").
Georgia
from Georgia and are unable
demonstrate whether this amount,
entire
the
[the nonresident nonparty
identify
it derives
subject
of
defendant
hhgregg,
*4
[not]
the record falls far short
shipped
Little v.
(3)
from
nonresident
and
is
CDL,
(xxEven if
inferences
[the
Georgia.
Enterprises,
revenue from what
original));
from
subsection
Outdoor
available in [the plaintiff's]
of
revenue
defendant manufacturer]
jurisdiction
long-arm statute.");
at
substantial
Hicon
to
the amount
were
able
to
tortious injury that
it
has
alleged are
purely economic in nature and are unaccompanied by any claim of
22
personal injury or damage to other property.16
IS
21-23
pocket
(explaining
repair
"repeatedly
"far
less
and
that
service
replenishing
valuable
Plaintiff's
value unless
replaced.").)
than
include
costs
Daikin
HVAC units
and "failed major appliances
damages
costs,"
its
(See Am. Compl.
Coils
nout-of-
associated
with
originally
with
refrigerant,"
bargained
for,"
that diminish Plaintiff's property
Therefore,
the exercise of personal
jurisdiction over DIL would not be appropriate under Subsection
3 of Georgia's long-arm statute.
In
sum,
factual
Plaintiff
prerequisites
has
failed
needed
to
to
establish
support
the
any
of
the
exercise
jurisdiction over DIL under Georgia's long-arm statute.
of
Because
asserting jurisdiction over DIL would not be appropriate under
16 Plaintiff also alleges that:
health
and
safety
risks
(a)
[because]
*[t]he Daikin Coils expose consumers to
[l]eaked
refrigerant
can
cause
severe
injury if inhaled or if it comes in contact with skin or eyes"; (b) "leaked
refrigerant can cause damage to surrounding property"; and (c) u[t]he Daikin
Coils also damage the environment" because the leaked refrigerant is a
greenhouse gas.
(Am. Compl. M 15-17 (emphasis added).)
Notably, however,
Plaintiff
has
not
alleged having actually suffered
exposure
to
the
aforementioned health and safety risks or damage to surrounding property.
Cf. Jung v. Ass'n of Am. Med. Colleges, 300 F. Supp. 2d 119, 136 (D.D.C.
2004) (*[P]laintiffs cannot rely on alleged injury to putative plaintiffs in
order to meet
the in-District injury requirement"
under corresponding
subsection of District of Columbia's similar long-arm statute).
With regards
to Plaintiff's allegation that the Daikin Coils leak greenhouse gasses that
damage the environment generally,
because
i t has
failed
legally-protected
injury to
to
interest
the public.
Plaintiff lacks standing to recover thereon
allege a
it
has
See O.C.G.A.
concrete and particularized injury of
suffered
§
41-1-3
that
differs
from
the
a
common
(WA public nuisance generally
gives no right of action to any individual. However, if a public nuisance in
which the public does not participate causes special damage to an individual,
such special damage shall give a right of action."); see also Lujan, 504 U.S.
at 560 (xx[T]he irreducible constitutional minimum of standing" requires that
a "plaintiff must have suffered an 'injury in fact' — an invasion of a
legally protected interest which is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical."
(internal quotations
and citations omitted)).
23
the forum-state's long-arm statute,
whether its exercise of
Process
Clause
Plaintiff's
of
claims
the
the Court need not determine
jurisdiction would comport with the Due
Fourteenth
against
DIL
must
Amendment.
Accordingly,
be
for
dismissed
lack
of
personal jurisdiction, and DIL's motion (doc. 32) is GRANTED.17
17 Plaintiff requests limited jurisdictional discovery "to investigate [DIL's]
true relationship with the State of Georgia."
(Doc. 36, at 15.)
In support,
Plaintiff
claims
that
it has
"set
forth newly discovered facts
that
demonstrate that [DIL] likely has greater ties to Georgia then it admits"
because DIL "has a subsidiary in Georgia that appears to distribute [DIL's]
products in Georgia, including the exact type of product Plaintiff complains
of."
(Id.)
Generally, a plaintiff "should be given the opportunity to
discover facts that would support his allegations of jurisdiction."
MajdPour v. Georgiana Cmty. Hosp., Inc., 724 F.2d 901,
903 (11th Cir. 1984)
(citations omitted).
Where a complaint is "insufficient as a matter of law
to establish a prima facie case that the district court had jurisdiction,"
however,
it is an abuse of discretion to grant jurisdiction discovery.
Butler
v.
Sukhoi
Co.,
579
F.3d
1307,
1314
(11th
Cir.
2009)
(citations
omitted).
Moreover,
courts are "not obligated to permit jurisdictional
discovery based on a party's 'mere hunch that there may be facts—or a desire
to find out if there are any facts—that justify the exercise of personal
jurisdiction.'"
Stevens v. Reliance Fin. Corp., No. 2:13-CV-416-MEF, 2014 WL
631612, at *9 (M.D. Ala. Feb. 18, 2014) (quoting Kason Indus., Inc. v. Dent
Design Hardware, Ltd., 952 F. Supp. 2d 1334, 1353 (N.D. Ga. 2013)).
Here,
Plaintiff's boiler plate recitations of jurisdiction in the Amended Complaint
have been refuted by DIL through the Kondo Declaration.
(See Kondo Decl.,
Doc. 32-1.)
Plaintiff has presented no evidence in response that would
support a reasonable inference that DIL has
transacted business -
or derived
substantial revenue from goods used or consumed - in Georgia.
Indeed, as
previously noted, the only evidence provided by Plaintiff relates to DAG's
formation and activities (including the products sold by DAG) , as well as
news articles related to DNA's manufacturing activities and DIL's 2006
corporate acquisition of another HVAC company.
(See Docs. 36-2 - 36-5; see
also Lippsmith Decl., Doc. 36-1.)
Further, Plaintiff has failed to provide
the Court with any proposed discovery requests that it believes necessary to
support its claims of jurisdiction.
Accordingly, Plaintiff is essentially
arguing that it should be given free rein to explore whether DIL has engaged
in any activity that would allow Plaintiff to sue in this forum; this,
however,
is not the purpose of jurisdictional discovery.
See Atlantis
Hydroponics, Inc. v. Int' 1 Growers Supply, Inc. , 915 F. Supp. 2d 1365, 1380
(N.D. Ga. 2 013) ("The purpose of jurisdictional discovery is to ascertain the
truth of the allegations or facts underlying the assertion of personal
jurisdiction. It is not a vehicle for a 'fishing expedition' in hopes that
discovery will sustain the exercise of personal jurisdiction." (citations
omitted)).
The Court
is
unwilling to
grant
Plaintiff
jurisdictional
discovery on a mere hunch that there may be facts justifying the exercise of
personal
jurisdiction;
accordingly,
Plaintiff's
request
for
limited
jurisdictional discovery is DENIED.
24
B.
DAA &
1.
In
their
motion
DNA'S MOTION TO DISMISS
12(b)(1)
to
-
Standing
dismiss,
DAA
&
DNA
first
argue
that
Plaintiff's claims against them should be dismissed for lack of
standing because ''neither entity played any role in the design,
manufacture,
or
sale
was the warrantor of
injury
is
DNA]."
33-1,
Doc.
33-2,
3, SI5 4-5,
7).)
traceable'
at
9-10
SI 3;
Indeed,
(Americas),
Plaintiff's
units,
those units" and thus
'fairly
(Doc.
Donoghue,
AC
not
of
Inc.
to
(citing
and neither
entity
"Plaintiff's alleged
any
conduct
Declaration
Declaration of Lee J.
by
or
Daniel
of
[DAA
R.
Doc.
33-
Smith,
DAA & DNA allege that non-party Daikin
is
the
entity
that
actually
warranted
(Id. (citing Smith Decl., Doc. 33-3, 1
Plaintiff's HVAC units.18
7) .)
"To
(1)
an
either
establish Article
injury
actual
in
or
fact
III
that
imminent;
standing,
is
(2)
a
causal
favorable
judicial
Orthodontics,
Reg' 1
LLP,
Healthcare
2014)).
attaches
Plaintiff's
outdoor
(Doc.
35,
will
773
F.3d at
Sys. ,
Inc. ,
245
768
plaintiff
show
and
connection between
and
(3)
redress
a
copy of
HVAC
units.
F.3d
1135,
the warranty it
(See
"Plaintiff does not concede that
at 17.)
25
a
Smith
the
injury."
this
1145
Kawa
Orlando
(11th
Cir.
[a plaintiff]
must
believes
Decl.,
the
likelihood that
(citing McCullum v.
"To satisfy the injury requirement,
18 DNA also
Notably,
decision
must
particularized,
concrete,
injury and the conduct complained of;
a
a
is
Doc.
applicable
33-3,
Ex.
to
A.)
is the applicable warranty."
show
an
invasion
sufficiently
and
of
concrete
indefinite."
NAACP
Branches
xxTo establish
demonstrate
v.
Id. at 247
merely
this
controversy
arguing
33-1,
stake
that
at
that
Plaintiff
however,
245
or
that
in
see
this
must
to
result
before
the
the
of
the
court."
"To establish [the]
likely,
will
be
as
opposed to
redressed
by
a
504 U.S. at 561).
the
Court
as
true.
Warth,
subject
not
have
rather,
45,
at
evidence
sell,
See
does
the
they
matter
a
2
(*.
.
appear
be
(See Doc.
that
they
have
did
or warrant the units about which
At
the
motion
accept
Plaintiff's
Kawa
Orthodontics,
U.S.
to
. Defendants
establishing
of
sufficient
sued the wrong company.
Doc.
must
422
decide
lawsuit;
has
also
to
Plaintiff
complains.").)
(citing
not
at 560).
injury
jurisdiction
manufacture,
allegations
the
of
1999)).
traceable
and not
must be
Cir.
[a plaintiff]
fairly
(citing Lujan,
uncontroverted
not design,
it
the
Id.
Plaintiff
9-10;
introduced
504 U.S.
abstract
neither DAA nor DNA appear to be arguing that this
without
personal
is
is
Conference
(11th
[requirement] ,
that
than
State
1262
third party
[requirement],
speculative,
is
some
interest
rather
Ga.
1259,
defendant,
(citing Lujan,
Notably,
F.3d
injury
the
of
favorable decision."
Court
183
(citing
causation
of
action
redressability
246
alleged
challenged action
protected
particularized
at
Cox,
[the]
legally
and
Id.
its
independent
a
at
26
501).
to
dismiss
well-pled
LLP,
Taking
773
stage,
factual
F.3d at
Plaintiff's
allegations
at
face-value,
and particularized actual
Plaintiff
injury
has
(e.g.,
pled:
(1)
a
concrete
excessive corrosion of
the Daikin Coils resulting in failed HVAC units and related out-
of-pocket repair/service costs); (2) a causal connection between
its injuries and Defendants' conduct (e.g., Defendants designed,
manufactured,
Plaintiff's
marketed,
or
HVAC units);
decision
(e.g.,
Accordingly,
distributed
and
(3)
monetary
Plaintiff
has
the
Daikin
Coils
redressability by a
damages,
purposes of a motion to dismiss.
favorable
injunctive
established
its
in
relief).
standing
for
the
See Bochese, 405 F.3d at 975-
76 (n[W]hen a question about standing is raised at the motion to
dismiss stage,
allegations
In
of
contrast,
judgment
it may be sufficient to provide general factual
injury
when
stage,
allegations."
.
standing
plaintiff
DNA also
for
Complaint
lumps
however,
.
the
dismissed
[DNA]."
.
from
can
the
is
defendant's
raised
no
at
longer
conduct.
the
rest
summary
on
mere
(quotations and citations omitted)).
DAA and
allegations
resulting
lack
of
all
regarding
(Doc.
argue
that
standing
Defendants
the
33-1,
at
Plaintiff's
because
9.)
As
n[w]hen multiple defendants
roles
should be
''Plaintiff's
together"
specific
claims
and
played
pointed
out
Amended
xx contains
no
by
or
[DAA]
by
Plaintiff,
are named in a
complaint,
the allegations can be and usually are to be read in such a way
that
each
defendant
is
having
27
the
allegation
made
about
him
individually."
Crowe v. Coleman,
1997).
"in the context of a multiple defendant lawsuit,
Indeed,
113 F.3d 1536, 1539
(11th Cir.
the Eleventh Circuit has only required the pleading of specific
allegations as to each defendant's conduct when there are fraud
allegations."
WL 8302215,
& Constr.
F.D.I.C.
v. Briscoe,
1:11-CV-02303-SCJ,
at *7 (N.D. Ga. Aug. 14, 2012)
The
Court
must
also
be
2012
(citing Ambrosia Coal
482 F.3d 1309,
Co. v. Pages Morales,
2 007) .
No.
conscious,
1317
(11th Cir.
however,
of
the
Supreme Court's statements that a complaint's allegations "must
give
the defendant
fair notice
grounds upon which
right
to
relief
Twombly,
550
plaintiff's
it rests" and
above
U.S.
at
'grouping'
the
550,
13,
2:10-cv-719,
"must be
speculative
555).
claim
is and
enough
level."
to raise a
Id.
"Accordingly,
the
at
(quoting
times,
a
George & Co.,
2011 WL
6181940,
LLC v.
at
*
2
Alibaba.com,
(M.D.
Fla.
Dec.
2011) .
Other
courts
against
multiple
without
prejudice
See,
the
of defendants in a complaint may require
a more definite statement."
Inc. , No.
of what
e.g. ,
plaintiff
provide
faced
defendants
or
Briscoe,
to
have
2012
"replead
specific
with
the
similarly
have
either
ordered
WL
"lumped"
dismissed
more
definite
8302215,
at
*8
allegations
of
its
allegations
as
to
allegations
each
claims
statements.
(requiring
[c]omplaint
the
to
[d]efendant's
involvement or responsibility for the alleged wrongs,
28
the
decisions,
approvals,
transactions,
[c]omplaint");
21588-CIV,
Petrovic v.
2012
(dismissing
and
WL
the
loans
referenced
Princess
3026368,
at
plaintiff's
in
Cruise Lines,
*5
(S.D.
complaint
Fla.
the
Ltd.,
July
without
original
No.
20,
12-
2012)
prejudice
with
leave to replead due to the plaintiff's "grouping" of defendants
because
whom
"[t]he nature
they
Receiver
are
of
60080CIV,
lodged,
Lancer
2008
(dismissing
WL
inter
together
in
roles
were
to
must
926512,
be
at
different,
the
Citco
(S.D.
their
Grp.
Fla.
Ltd.,
[plaintiff's]
No.
31,
leave
to
three
minimal
conduct,
Appointed
Mar.
these
providing
and against
Court
with
lumping
and
distinguish
clear");
v.
*3
allegation,
prejudice
"[b]y
claim
made
Inc.
without
alia,
each
[p]laintiff's
Offshore,
complaint
because,
allegations
of
05-
2008)
replead
defendants
individualized
even
though
[c]omplaint
their
challenges
the standard of Rule 8").
Here,
entities,
engaged
Plaintiff
but
in
Complaint.
conduct
the
the
design,
actually
to
its
Defendants
distinguish which
misconduct
of
manufacture,
of
that
set
forth
Plaintiff simply asserts
the basis
contained therein).
is
fails
alleged
Rather,
forms
warranting
then
alleges
each cause
marketing,
nineteen
As such,
attributing
of
HVAC
are
entity
in
that
action,
(or
actually
its
Amended
"Defendants'"
whether
distribution,
units
separate
the
it be
sale,
Daikin
or
Coils
it is unclear as to whom Plaintiff
these
discreet
29
acts,
and
accordingly,
whom
Plaintiff
however,
must
occurrences
including
act
of
hold
and
events
which
above-cited
to
clearly
and
which
order
seeks
law,
Plaintiff
to
the
each
state
support
Defendant(s)
complains.
case
for
concisely
which
specific
it
liable
replead
the
each
the
of
after
exercises
its
claims,
each
specific
review
its
allegations
Plaintiff,
circumstances,
committed
Accordingly,
Court
act.
of
discretion
of
its
the
to
Amended
Complaint to provide specific allegations as to each Defendant's
involvement
or responsibility for
the
alleged acts,
omissions,
or other conduct referenced therein.
2.
DAA
&
12(b)(2)
DNA
-
contend
Personal Jurisdiction
that
this
Court
lacks
personal
jurisdiction over them because "Plaintiff's claims do not arise
out
of
[DAA
undisputed
and/or
fact
manufacture,
DNA's]
that
sell,
Bahia
Lora,
S.A.,
process requires
the tort,
the
[DNA]
or
alone in Georgia."
that
and
warrant
(Doc.
558
forum-related
45,
activities
[DAA]
did
F.3d 1210,
not
units
Plaintiff's
at 3.)
given
at
1222-23
(11th Cir.
"the contact must be a
design,
all,
See Oldfield v.
the
let
Pueblo De
2009)
'but-for'
(due
cause of
yet the causal nexus between the tortious conduct and
purposeful
contact
must
be
such
that
the
out-of-state
resident will have fair warning that a particular activity will
subject
it
to
the
(citations omitted)).
jurisdiction
of
a
foreign
sovereign."
In support of these assertions,
30
DAA cites
to the declaration of Daniel R. Donoghue,
(See
Declaration
("[DAA]
units.
Daniel
did not design,
or market
units,
of
Plaintiff's
R.
DAA's Senior Attorney.
Donoghue,
manufacture,
outdoor VRV
Doc.
distribute,
III
Inverter
the
[DAA's]
sell,
units
3-4
warrant,
or
indoor
design and manufacturing activities for its HVAC
declaration
Market
&
Smith,
Doc.
of
Applications
33-3,
Lee
J.
Smith,
Strategy.
15
4,
6
information
Plaintiff's
outdoor units were Model No.
manufacture,
Plaintiff's
units,
Plaintiff's
for
Georgia.").)
.
.
its
it
.
President
No.
DAA
of
FXSQ18MVJU,
RXYQ12 0PTJU,
sell,
Lee
and belief
warrant,
that
[DNA]
the
distributed
(emphasis added);
design,
cf.
manufacture,
the
United
DAA
&
DNA
States."
have
[DNA's]
design
and
take
place
nor
however,
Daikin
DNA,
Coils."
Kondo Decl.,
advertise,
(emphasis
failed
factual allegations of
to
did
market
manufacturing
outside
has
(See
Doc.
Am.
32-1,
S[ 4
or sell products
added)).)
introduce
Compl.
S[
13
in Georgia
or
because
controvert
the
Plaintiff's complaint with regard to
the
31
to
sold
("DIL does not
Accordingly,
evidence
of
explicitly
challenged Plaintiff's allegations that they "manufactured,
and
J.
that
and
or
of
involved in the supply chain for
products
HVAC
Neither
Model
distribute,
nor was
units.
activities
were
Vice
Declaration
indoor
design,
units
(See
("Upon
DNA, in turn, cites
DNA's
Plaintiff's
not
M
nor was it involved in the supply chain for Plaintiff's
products take place outside of Georgia.").)
to
33-2,
manufacture,
opposed to
sale,
the
and
HVAC
distribution
units
these allegations
Corp. ,
F.2d
explicitly
entities
8.)
at
855.
challenged
As
business
Accordingly,
because
facie
basis
for
within
3. 12(b)(6)
&
DNA
also
coils),
Coils
the
(as
Court
See Cable/Home Commc'n
neither
DAA
nor
allegations
Georgia.
Plaintiff
dismissal under Rule 12(b)(2)
DAA
well,
personal
Daikin
true.
Plaintiff's
transact
prima
as
the
those
containing
must accept
902
of
has
DNA
that
(See
Am.
has
these
Compl.
5
alleged an unrebutted
jurisdiction
over
DAA
&
DNA,
is not warranted.
- Failure to State a Claim
move
to
dismiss
all
of
Plaintiff's
claims
for failure to state a claim upon which relief can be granted.
a. Plaintiff's Strict Liability and Negligence Claims
In
its
asserts
three
categories of strict liability claims against Defendants,
namely
counts:
strict
(5)
liability
design
-
strict
liability
Plaintiff
namely
DAA &
count:
DNA argue
dismissed because,
loss
Complaint,
manufacturing
defect.
negligence,
dismiss,
Amended
-
failure
defect;
also
(8)
that
inter alia,
Plaintiff
and
(7)
asserts
negligence.
these
to
a
warn;
strict
(6)
liability
separate
In
claim
for
their motion
tort-based claims
-
must
to
be
they are barred by the economic
rule.
To state a claim for strict liability under Georgia law,
plaintiff must show that:
(1)
a
the defendant is the manufacturer
32
of the product;
(2)
the product, when sold by the manufacturer,
was not merchantable and reasonably suited to the use intended;
and
(3)
cause
the product's
of
the
injury
sustained
Hardware & Fixture Co.
1999);
condition when
v.
by
Letterman,
see also O.C.G.A.
sold
the
was
the proximate
plaintiff.
510 S.E.2d 875,
§ 51-1-11(b)(1)
Chicago
877-78
(Ga.
("The manufacturer of
any personal property sold as new property directly or through a
dealer or any other person shall be liable in tort, irrespective
of
privity,
to
any
natural
person
who
may
use,
consume,
or
reasonably be affected by the property and who suffers injury to
his
person
or
property because
manufacturer was
use intended,
of
the
not merchantable
sustained.").
under Georgia law,
to
a
of
breach
this
connection
(4)
some
protected
loss
(Ga.
or
interest
(citing
To
state
the
a
as
Tuggle v.
a
(3)
a
legally
and
flowing
result
Helms,
Center
"(1)
raised
of
the
to
the
by
1982)) .
33
for
negligence
legal duty to
the
of
law
for
harm;
attributable
296
367
S.E.2d
a
causal
and,
legally
breach
(Ga.
the
(2)
injury;
plaintiff's
alleged
Wessner,
the
[a]
risk
499 S.E.2d 365,
v.
the
suited to
resulting
the
sold by
the proximate cause
claim
unreasonable
conduct
damage
Bradley
conduct
against
standard;
between
legal duty."
1998)
others
of
when
and reasonably
a plaintiff must show:
standard
protection
of
property
and its condition when sold is
injury
conform
the
of
Ct.
693,
the
App.
695
As previously noted,
a
strict
liability
however,
claim
or
a
the injury required to state
negligence
claim
based
on
a
defective product must be distinct from the loss of the value or
use
of
the
defective
product
(or the
cost
of
repairing
it) .
This
is because "Georgia's economic loss rule bars recovery in
tort
for purely economic
F.3d
at
1291
("Absent
other than to
losses."
personal
Squish La
injury
or
Fish,
damage
Inc.,
to
149
property
the allegedly defective product itself an action
in negligence does not lie and any such cause of action may be
brought
only as
a
Drainage Systems,
S.E.2d
at
604
contract warranty action."
Inc.,
437
("The
S.E.2d at 607);
'harm'
(citing Advanced
see also Long,
contemplated
or
protected against by such rule is bodily harm,
and limb,
the
217
interest
injury to life
injury to others and damage to property other than the
product
itself.
Where
there
damage,
and the
only loss
is
no
accident,
is a pecuniary one,
and
no
physical
through loss
of
the value or use of the thing sold, or the cost of repairing it,
the
courts
interests
negligence,
have
are
234
S.E.2d
not
and
quotations and
123,
adhered
so
the
entitled
have
citations
124
to
to
denied
omitted));
(Ga.
Ct.
App.
rule
purely
protection
the
recovery."
1977)
("We
economic
against
Chrysler Corp.
'injury,' within the context of Code Ann.
34
that
mere
(internal
v.
hold
Taylor,
that
an
s 105-106 [presently
O.C.G.A.
§ 51-1-11],
does not include damages stemming from loss
of the benefit of one's bargain.").
Here, the Court concludes that Plaintiff's strict liability
and negligence claims are all barred by the economic loss rule
because Plaintiff alleges only purely economic losses resulting
from the
failure of
its HVAC units
(i.e.,
Plaintiff has
to allege any harm to its "person or property.").
Section III.A,
pocket
repair
"repeatedly
"far
less
supra,
and
Plaintiff's
service
replenishing
valuable
HVAC
injuries
costs,"
its
Daikin
units
than
As noted in
consist
costs
Coils
failed
of
"out-of-
associated
with
originally
with
refrigerant,"
bargained
for,"
and "failed major appliances that diminish Plaintiff's property
value unless replaced."
(Am. Compl.
11 21-23.)
Plaintiff does
not challenge that each and every one of these alleged injuries
concerns
rule.
a
purely
Rather,
injuries
economic
Plaintiff
recoverable
unreasonable
Plaintiff's
alleged that
risks
of
employees
in
loss
asserts
tort,
personal
and
barred
that
the
economic
it
has
alleged
namely
injury
personal
by
and
loss
other
"substantial
property
property"
damage
because
it
and
to
has
"the Daikin Coils pose safety hazards in the form
of leaks of dangerous refrigerant" and that "refrigerant gas can
be
harmful
to
both
personal
property
and
the
environment."
(Doc. 35, at 13 (emphasis added); see also Am. Compl. 11 15-17.)
35
These
additional
alleged
injuries,
however,
fail
to
sustain
Plaintiff's tort-based causes of action.
As
that
an
it
initial
suffered
matter,
Plaintiff
exposure
to
the
has
not
actually
aforementioned
safety risks or damage to surrounding property.
extent
that
Plaintiff
risk of injury,
claims
that
it
has
alleged
health
Second,
suffered an
and
to the
increased
such increased risks of injury are insufficient
to state an "injury" recoverable in tort under Georgia law.
Parker v.
Ga.
Brush Wellman,
2005)
("[T]he
adopted a
risk'
theory
Court
observes
Supp.
that
2d 1290,
no
1299
Georgia
liability premised on
(N.D.
court
has
'increased
of suffering from a future disease or injury."
(citations
aff'd sub nom.
Cir.
Inc. , 381
of
377 F.
the mere
omitted)),
(11th
Inc.,
See
2007);
see
S.E.2d 295,
Parker v.
also
297-98
Wellman,
Boyd
v.
Orkin
(Ga.
Ct.
App.
230
F.
App'x
Exterminating
1989)
878
Co.,
(appearing to
reject "increased risk of injury" theory as grounds for recovery
in tort),
overruled on unrelated grounds by Hanna v. McWilliams,
446 S.E.2d 741
(Ga.
Ct.
App.
1994);
see also O.C.G.A.
("If the damage incurred by the plaintiff is
§ 51-12-8
only the imaginary
or possible result of a tortious act or if other and contingent
circumstances preponderate in causing the injury,
such damage is
too remote to be the basis of recovery against the wrongdoer.").
Finally,
to
environment
the
due
extent
to
that
the
Plaintiff
Daikin
36
alleges
Coils'
an injury to
alleged
leaking
the
of
greenhouse gasses,
Plaintiff lacks standing to recover for these
alleged injuries because it has
failed to allege an injury it
has suffered that differs from the common injury to
See
O.C.G.A.
§
41-1-3
("A public
nuisance
right of action to any individual. However,
in which the public does
to
an
individual,
such
generally
damage
gives
no
if a public nuisance
not participate causes
special
the public.
shall
special
give
a
damage
right
of
action.") .
Hoping
that,
to
"even
claims
if
survive
"Defendants
defects,
the
roll
the
via
a
saving
throw,
economic
the
Plaintiff
loss
rule
their
HVAC
about
the
Daikin
Coils
to
to
asserts
Plaintiff's
exception"
units
were aware that this was untrue,
truth
applies,
misrepresentation
misrepresented
baldly
be
because
free
from
and failed to disclose
consumers,
knowing
that
consumers would rely upon their representations and omissions to
their detriment."19
misrepresentation"
who
supplies
profession,
(Doc.
exception
information
employment,
19
parties
Notably,
who
rely
Plaintiff
at 15.)
to
the
during
Under the "negligent
economic
the
course
loss
of
rule,
his
"[o]ne
business,
or in any transaction in which he has a
pecuniary interest has a
to
35,
duty of reasonable care and competence
upon
provides
the
no
information
citations
of
in
fact
circumstances
(i.e.,
to
a
in
specific
paragraph of the Amended Complaint) or law in support of these assertions.
See LR 7.1, SDGa ("Every factual assertion in a motion, response, or brief
shall be supported by a citation to the pertinent page in the existing record
or in any affidavit, discovery material, or other evidence filed with the
motion.").
37
which
the maker was manifestly aware of
the use
to which the
information was to be put and intended that it be so used. This
liability is limited to a foreseeable person or limited class of
persons for whom the information was intended,
or indirectly."
Robert
504
&
Co.
(Ga.
Squish La Fish,
Assocs.
1983)).
misrepresentation"
supply
of
unknown;
false
(2)
information;
such
v.
The
cause
1997).
Id.
Quade
not
entitled
a
action
are:
Ml)
the
to
foreseeable
July 9,
plaintiff's
appears
negligent
persons,
known
reasonable reliance upon that
&
(citing
Douglas,
Hardaway
Inc.,
479
Co.
S.E.2d
invoke
the
1:13-CV-2195-TWT,
2 014)
strict
because
to
to
v.
or
false
Parsons,
727,
(holding that
729
(Ga.
only
apply
economic
[misrepresentation]
to
misrepresentation
2014 WL 3360233,
the
loss
U.S.A., Inc., 724 S.E.2d at 60)).
38
at *4
(N.D.
rule barred
product
liability
exception
misrepresentation
negligent or intentional misrepresentation"
Plaintiff
Chalet Shingle Prod.
liability and negligence
Mt]his
however,
negligent
See In re Atlas Roofing Corp.
Liab. Li tig. # No.
claims
"negligent
such
Because Plaintiff has failed to assert a cause of action
exception.
Ga.
S.E.2d 503,
of
for fraud and/or negligent misrepresentation,
is
300
economic injury proximately resulting from
reliance."
Brinckerhoff,
P'ship,
elements
of
such persons'
(3)
149 F.3d at 1291 (citing
Rhodes-Haverty
information
and
Inc.,
either directly
claims;
e.g.,
(citing Home Depot
While Plaintiff has alleged a
cause
of
DNA's
alleged
design,
action
for
negligence,
ufailure
formulation,
and/or
to
said claim
exercise
of
the
based
reasonable
manufacture,
distribution
is
sale,
Daikin
care
testing,
Coils"
on DAA &
and
in
their
marketing,
*failure
to
exercise reasonable care with respect to post-sale warnings and
instructions for safe use,"
(Am.
Compl.
ai 126-127),
rather than
any alleged negligent supply of false information to Plaintiff.
See,
e.g.,
Waithe
2012
WL 776916,
v.
at
Arrowhead
*8
(S.D.
Ga.
Clinic,
Mar.
Inc.,
7,
No.
2012)
CV
("The
409-021,
Court
is
aware that Georgia recognizes an exception to the economic loss
rule for claims of misrepresentation.
is
not
based
maintenance
on
However,
misrepresentation,
of
patient
but
the instant claim
rather
accounts.
on
Therefore,
misrepresentation exception is not applicable here."
omitted)),
aff'd,
Accordingly,
economic
fraud
rule
losses
or
bars
491 F. App'x 32
because
and has
negligent
(11th Cir.
Plaintiff
has
failed to allege a
misrepresentation,
Plaintiff's
tort-based
liability and negligence claims,
the
(citations
2012).
only
alleged
purely
cause of action for
Georgia's
claims,
negligent
economic
namely
and these counts
its
loss
strict
(5 through 8)
are properly dismissed on these grounds alone.20
20 DAA & DNA also assert additional reasons why each of Plaintiff's tort-based
causes of action fail as a matter of law.
(See Doc. 33-1, at 14-16.)
Because all of Plaintiff's tort-based claims are barred under the economic
loss rule, the Court need not consider these additional reasons.
39
b.
Plaintiff
action,
also
namely
Warranty Act,
express
Plaintiff's Warranty Claims
asserts
counts:
(1)
15 U.S.C.
warranties;
merchantability;
(4)
for a particular purpose.
argue
that
because,
these
et seq.
breach
breach of
of
causes
of
the
Magnuson-Moss
("MMWA");
(2) breach of
of
implied
warranty
implied warranty of
In their motion to dismiss,
warranty-based
inter alia,
warranty-based
violation
§ 2301,
(3)
and
four
claims
must
be
they are time-barred and fail
of
fitness
DAA & DNA
dismissed
for lack of
notice.
i. Plaintiff's Implied Warranty Claims
Georgia
applies
warranty claims,
warranties
or
2013)
four-year
implied warranties.
Daimler AG,
("Georgia has
in
O.C.G.A.
11-2-725(1),
claims.").
relation
Similarly,
subject to this
at *5
of
limitations
948 F.
to
Supp.
contracts
and
this
for
applies
four-year statute of
(S.D.
O.C.G.A.
§
11-2-725(1);
2d 1347,
look to
1361
(N.D.
four-year statute of
the
to
sale
of
goods,
implied-warranty
of Am. Inc.,
Fla. Apr.
30,
limitations.
No.
2014)
See Speier-
14-20107-CIV,
2014 WL
(Because "the Magnuson-
Moss Act contains no express statute of limitations,
courts
to
a MMWA claim pursued in Georgia is also
Roche v. Volkswagen Grp.
1745050,
See
adopted the UCC's
limitations
§
statute
regardless of whether they are based on express
see also McCabe v.
Ga.
a
. . . the
[the] most analogous state statute to determine
40
which
statute
of
limitations
to
apply.").
In
a
transaction
involving the sale of goods,
[a] cause of action accrues when the breach occurs,
regardless of the aggrieved party's lack of knowledge
of the breach. A breach of warranty occurs when tender
of delivery is made,
except that where a warranty
explicitly extends to future performance of the goods
and discovery of the breach must await the time of
such performance the cause of action accrues when the
breach is or should have been discovered.
O.C.G.A.
§ 11-2-725(2).
Plaintiff
alleges
that
DAA
&
DNA
breached
two
implied
warranties, namely the implied warranty of merchantability21 and
the implied warranty of fitness for a particular purpose.22
Compl.
cannot
F.
aa
Because "[a]n implied warranty by its nature
'explicitly extend
Supp.
occurs
67-89.)
2d at
-
and
13 61,
the
the
goods
statute
of
purchased was
has pled that it
2010,"
future performance,'"
a
breach of
limitations
476
made
(Ga.
.
Ct.
.
.
."
App.
that
the
defect
Coils
conditions."
are
(Am.
put
Compl.
to
use
M
12,
21 See O.C.G.A. § 11-2-314.
See O.C.G.A.
§
948
implied warranty
bringing
11-2-315.
41
under
19.)
Everhart
1973).
of
formicary corrosion in the Daikin Coils,
Daikin
for
"purchased and installed"
and
an
McCabe,
a
claim
run - "when delivery or tender of delivery
Inc. , 196 S.E.2d 475,
March
to
however,
thereunder begins to
of
(Am.
Here,
v.
Rich! s,
Plaintiff
its HVAC units
which
it
"[i]n
complains,
"begins as soon as
normal
Because
the
environmental
delivery of
an
HVAC unit must necessarily occur before its installation on the
purchaser's property,
units
(and Daikin Coils)
been
delivered
Accordingly,
have
the Court reasonably infers that the HVAC
to
of which Plaintiff complains must have
Plaintiff
sometime
in
March
the breach of any implied warranty,
occurred
-
and
thus
the
statute
of
if any,
limitations
breach(es) would have begun to run - in March 2010.
948
F.
Supp.
Therefore,
2d
at
required Plaintiff
Everhart,
relevant
Georgia's
1361;
four-year
to
initiate
its
196
breach
of
Accordingly,
all of
on
such
of
at
476.
limitations
implied warranty
claims by no later than the end of March 2014,
failed to do.
would
See McCabe,
S.E.2d
statute
2010.
which Plaintiff
Plaintiff's
implied-warranty
claims are barred by the statute of limitations.
Again,
that
hoping
the
applicable
warranty-based
for
DAA
&
to
saving
of
should be
"fraudulent
applicable warranty"
a
statute
claims
DNA's
roll
because
throw,
Plaintiff
limitations
tolled under
concealment
"Plaintiff
of
periods
O.C.G.A.
the
alleges
a
defect
refrigerant"
presented
to
that
and
causes
the
Plaintiff
them
"proffered
for
the
42
to
corrode
Limited
first
and
Product
time
with
its
9-3-96
and
the
Defendants
intentionally concealed the fact that the Daikin Coils
from
for
§
defect
that
asserts
leak
suffered
harmful
Warranty
is
Defendants'
Motion to Dismiss."23
9-3-96,
guilty
"[i]f
of
a
the
(Doc. 35, at 18.)
defendant
or
fraud by which
those
Pursuant to O.C.G.A. §
under
the plaintiff
whom
has
he
been
claims
are
debarred or
deterred from bringing an action,
the period of limitation shall
run
plaintiff's
only
from
fraud."
Id.
other
time
the
relationship between itself
reason why
Plaintiff
disclose,
of
discovery
of
the
Because Plaintiff has not pled the existence of a
confidential
any
the
these
must
entities
and DAA and/or DNA or
owed
Plaintiff
inter
demonstrate,
a
alia,
duty
an
to
"actual
fraud involving moral turpitude which concealed the existence of
a claim."
224,
265
See Fed.
229
(Ga. Ct.
S.E.2d
Corp. ,
577
7
App.
(Ga.
S.E.2d
section
[O.C.G.A.
require
(1)
Ins. Co. v. Westside Supply Co.,
1980));
864,
§
actual
2003)
(citing Jim Walter Corp.
see
868
also
(Ga.
9-3-96]
fraud
590 S.E.2d
has
Golds ton
Ct.
App.
been
v.
involving moral
Bank
2003)
strictly
v. Ward,
of
("This
Am.
Code
construed
turpitude,
or
(2)
to
a
fraudulent breach of a duty to disclose that exists because of a
relationship of
Exley
also
&
Dunn,
943
that
limitations."
23
P.C.
HealthPrime,
App'x 937,
held
trust and confidence."
Again,
v.
Frame,
Inc.
v.
(11th Cir.
only
507
2011)
actual
provides
S.E.2d
411
(Ga.
Smith/Packett/Med-Com,
fraud
(citing Shipman v.
Plaintiff
(citing Hunter,
no
paragraph of the Amended Complaint)
1998)));
LLC,
428
see
F.
("The Georgia Supreme Court has
can
toll
the
Horizon Corp.,
citations
of
fact
267
(i.e.,
statute
of
S.E.2d 244,
to
in support of these assertions.
43
Maclean,
a
specific
246 (Ga. 1980)).
Notably,
NX [c] oncealment of the cause of action
must be by positive affirmative act and not by mere silence."
Westside
Hurley,
782
to
Supply
268
(Ga.
meet
Co.,
S.E.2d
1980)).
the
590
358
Here,
S.E.2d
(Ga.
Ct.
at
229
App.
(citing
1980),
Comerford
aff'd,
271
v.
S.E.2d
even ignoring that Plaintiff has failed
heightened
pleading
standard
for
claims
of
fraud
imposed by Federal Rule of Civil Procedure 9(b),24 Plaintiff has
failed
to
opposed
plead
to
Plaintiff's
mere
any
positive
silence
-
affirmative
by
warranty-based
DAA
causes
act
and/or
of
committed
DNA
that
action.
-
as
concealed
Accordingly,
Plaintiff has failed to plead a sufficient basis for the tolling
of the applicable statute of limitations.
ii.
Plaintiff
warranties
Plaintiff's Express Warranty Claims
also
alleges
concerning
the
that
Daikin
to,
products
containing Daikin Coils benefit
operating
costs;'
in
'reliable
24 See Edwards v. Wisconsin Pharmacal Co.,
&
Coils,
limited
low
representations
DAA
their
DNA
made
including,
catalogs
from
operation;'
xx express
but
that
not
their
xhigh efficiency,
and
xlow-cost
LLC, 987 F. Supp. 2d 1340,
1346
(N.D. Ga. 2013) ("Federal Rule of Civil Procedure 9(b) provides that parties
alleging fraud or mistake 'must state with particularity the circumstances
constituting fraud or mistake,' though scienter may be alleged generally.
In
this way, Rule 9 (b) supplements rather than abrogates the notice-pleading
requirements of Rule 8.
To sufficiently plead a claim for fraud,
the
plaintiff must specify in the complaint (1) precisely what statements or
omissions were made in which documents or oral representations; (2) the time
and place of each such statement and the person responsible for making
(or,
in the case of omissions,
not making)
them;
(3)
the content of
such
statements and the manner in which they misled the plaintiff; and (4) what
the defendant obtained as a consequence of the fraud."
(citing FindWhat
Investor Grp. v. FindWhat.com, 658 F.3d 1282, 1296 (11th Cir. 2011)).
44
maintenance and service.'"
(Am.
alleges
"represented
that
containing
terms
Daikin
and
DNA
Coils
(Id.)
"warrant [ed]
they
the
are
Coils
perform
DAA
&
60.)
Plaintiff also
that
their
DNA
[...]
standard
Limited
alleges
were
as
products
to
including
Plaintiff
Daikin
that
f
pursuant
sale,
well,
properly
alleges
'sold
of
As
that
would
Plaintiff
&
conditions
Warranty.'"
that
DAA
Compl.
free
that
of
DAA &
defects
intended."
"breached
Product
(Id.
[these]
5
DNA
such
61.)
warranties
concerning the Daikin Coils given that the Daikin Coils corrode,
leak
refrigerant,
and
impede
the
efficient
Plaintiff's and the Class's HVAC units."
As
that
an
the
initial
alleged
matter,
and
statements of
Court
representations
anticipated performance
maintenance
the
(e.g.,
service,"
("It
that
is
not
the
warranty,
a
as
regarding
a
matter
the
HVAC
operation,"
vague
and
necessary
or
to
use
that
he
the
creation
formal
have
See O.C.G.A.
words
a
of
an
such
specific
law
units'
indefinite
the goods
§ 11-2-313(2)
express
as
of
"low cost
the seller's opinion or commendation of
seller
'guarantee'
finds
were
and/or mere non-actionable puffery.
of
(Id. I 63.)
"reliable
etc.)
operation
warranty
'warrant'
intention
to
make
or
a
but an affirmation merely of the value of the goods or
statement
purporting
commendation of
to
be
merely
the
seller's
opinion
the goods does not create a warranty.");
Laundry & Dry Cleaning Co.
v.
Georgia Power Co.,
45
or
Snow's
6 S.E.2d 159,
162
(Ga. Ct.
App.
1939)
("For a representation to be construed
as a warranty the statement made must be affirmed as a fact; it
must be understood by the parties as having that character;
must
be
positive
ambiguous
property.
and indefinite statement
belief,
warranty."
779
courts
(Ga.
have
like").25
of
judgment
which
or
Ct.
App.
found
of
law
2000)
to
of
not
the
merely
express
do
(collecting
hope,
merely
a
vague,
seller regarding the
Sheffield v.
representations
opinion,
Accordingly,
and
estimate,
(citations omitted));
"expressions
matter
unequivocal
Representations
opinion,
776,
and
it
not
expectation,
be
vendor's
constitute
Darby,
cases
to
a
535
where
a
S.E.2d
Georgia
non-actionable
puffing,
and
the
these statements were insufficient as a
create
an
express
warranty,
and
thus
any
express warranty claims based thereon must be dismissed.
25 See also U-Haul Co. of W. Georgia v. Dillard Paper Co., 312 S.E.2d 618 (Ga.
Ct. App.
1983)
(broker's statements to purchaser that building was of
"excellent construction and had been well maintained, " that it was "one of
the best warehouse buildings in the City of Atlanta," and that "the building
was sound" were "expressions of opinion, general commendations, and sales
puffing"); Randall v. Smith, 222 S.E.2d 664, 666 (Ga. Ct. App. 1975) ("[T]he
oral statements made by [the defendant used car salesman] , that the car was
in good condition and suitable for driving was mere sales 'puffing.'"); Vitt
v.
Apple
Computer,
Inc.,
469
F.
App'x
605,
607
(9th
Cir.
2012)
(manufacturer's
advertising
statements
that
its
product was
"'mobile,'
'durable,'
'portable,'
'rugged,'
'built to withstand reasonable
shock,'
'reliable,' 'high performance,' 'high value,' an 'affordable choice,' and an
'ideal student laptop'" were "generalized, non-actionable puffery because
they
are
inherently
vague
and
generalized
terms
and
not
factual
representations that a given standard has been met"); Elsayed v. Maserati N.
Am., Inc., No. SACV1600918CJCDFMX, 2016 WL 6091109 (CD. Cal. Oct.
(manufacturer's
claims
that
its
automobiles
had
"state
of
engineering" which "inevitably enhances the [automobiles']
which
[the manufacturer]
is world renowned"
constituted
examples of generalized, nonactionable puffery").
46
18, 2016)
the
art
reliability, for
"straightforward
Second,
breached
Daikin
Plaintiff has not actually pled how DAA and/or DNA
their
Coils
representation
are
'sold
conditions of sale,
Compl.
f 60.)
"that
pursuant
their
to
products
[...]
standard
the
fact
Defendants'
provide
applicable
to
Plaintiff
Limited
now appears
a
Limited
products
to
argue
Product
Product
but
Warranty
that
it
has
the terms
Warranty
(Doc.
that
that
Limited Product
to present
its Amended Complaint.
HVAC
Plaintiff's
(Am.
fact or promise made by Defendants
Plaintiff paradoxically offers
future amendment
Because
and
While Plaintiff asserts that this representation
Plaintiff's HVAC would be covered by Defendants'
of
terms
including Limited Product Warranty.'"
"is an affirmation of
Warranty,"
containing
35,
DAA &
in
in
at
20.)
DNA did
relation
simply
a
failed
in
to
to
include a copy of the relevant Limited Product Warranty and/or a
summation
Complaint,
of
its
relevant
Plaintiff
has
terms
failed
in
to
the
plead
operative
sufficient
Amended
facts
to
demonstrate a breach of any alleged express warranty to provide
a Limited Product Warranty covering Plaintiff's
HVAC units
and
thus this express warranty claim must be dismissed.
See Brooks
v. Branch Banking & Trust Co.,
1296
(N.D.
contract
claim
Ga.
must
2015)
(MA]
allege
defendants
a
plaintiff
asserting a
particular
violated
to
107 F.
Supp.
breach
contractual
survive a
omitted)).
47
3d 1290,
motion
of
provision
to
dismiss."
that
the
(citations
Finally,
DNA
to
expressly
xxfree
of
the
extent
warranted
defects
that
that
such
Plaintiff
the
that
HVAC
they
alleges
that
units/Daikin
would
DAA &
Coils
properly
were
perform
as
intended" and/or affirms its original allegations that DAA & DNA
did not
in
fact
issue a Limited Product Warranty
Plaintiff's
HVAC
units,
would be time-barred.
(Am.
Compl.
M
60-61),
in
March
2010
either
Limited Product Warranty.
of
action
when
accrues
aggrieved party's
to
the
units
these
claims
breach
of
occurs,
the
the goods
the
of
and/or
without
breach.")
time of
a
("A cause
regardless
such
action
delivery to
§ 11-2-725(2)
these alleged warranties
could only be detected at
thus
defects
See O.C.G.A.
future performance
the
with
lack of knowledge of
because neither of
covers
Plaintiff's respective causes
would both have accrued at the time of the units'
Plaintiff
that
of
the
This
is
explicitly extends
that
their breach
future performance,
and
their breach occurred at the time of delivery of the HVAC
to
Plaintiff.
four-year statute of
See
id.
Therefore,
Georgia's
limitations required Plaintiff
to
relevant
initiate
its breach of
express warranty claims by no later than the end
of March 2014,
which Plaintiff failed to do.
2-725(1);
also
see
inapplicability
claims).
of
Section
O.C.G.A.
Accordingly,
III.B.3.b.i,
§
both of
9-3-96
to
See O.C.G.A.
supra
§ 11-
(discussing
Plaintiff's
the
warranty
these express-warranty claims as
48
presently pled would be barred by the statute of limitations and
therefore must be dismissed.
Hi.
Finally,
under
the
'implied
these
Plaintiff
MMWA
implied
22
alleges
DNA
(See Am.
&
defined
warranties
it
in
the
well
(as
Plaintiff
as
has
stated
DAA
&
DNA
that
DAA
&
DNA
but
with
breached
written
express
see also Doc.
viable
argue
also be dismissed.
35,
express
and
then Plaintiff's claims
The Court
(N.D.
independent
additional
Ga.
2005)
cause
damages
LLC,
("The
are
366
[MMWA]
of
action
for
for
breaches
of
under
the
[MMWA]
also
Ct.
damaged
App.
by
the
2003)
("The
failure
of
a
claims,
under
(citations
allows
1200
provide
Plaintiff's
Inc.,
supplier,
49
law
on
2d 1190,
not
warranty
fails."
[MMWA]
Supp.
state
Dildine v. Town & Country Truck Sales,
(Ga.
F.
does
Absent viable breach of warranty claims,
damages
dependent
agrees with
See
USA,
that
Plaintiff's
dismissed state-law warranty claim must also be dismissed.
Mercedes-Benz
claims
if
now-
n.14
MMWA
that
a
Fedrick v.
any
relief
Plaintiff
[MMWA]"
the
to
. . . Plaintiff's MMWA claim should be
proceed.").)
the MMWA must
entitled
54-55;
state-law warranty claims are dismissed,
under
is
"provided
Compl. is 44-48,
implied warranty claims
to
DAA
as
(MB]ecause
allowed
that
because
warranties'
warranties).
at
Plaintiff's MMWA Claims
state
an
only
law.
claims
omitted));
577 S.E.2d 882,
a
consumer
warrantor,
for
or
who
884
is
service
contractor
to
comply
with
any
obligation
under
an
implied
warranty to bring suit for damages and other legal and equitable
relief.
The
[MMWA]
defines
implied
warranty
as
an
implied
warranty arising under State law in connection with the sale by
a supplier of a consumer product.
plaintiff]
must show that
warranty
of
Moreover,
even
[the defendant]
merchantability
if
To recover,
Plaintiff
arising
alleged
time-barred
limitations.
under
See
2014 WL 1745050,
no
express
[the]
O.C.G.A.
at
the
MMWA
those claims would
relevant
four-year
11-2-725;
see
§
of
law.").
also
statute
of
Speier-Roche,
*5
of
statute
(Because "the Magnuson-Moss Act contains
limitations,
.
.
.
the
courts
look
to
most analogous state statute to determine which statute of
limitations
to
apply.");
Accordingly,
because
claims
be
claims
the
Georgia
violation
independent of its state-law warranty claims,
be
[the
breached the implied
under
a
therefore,
will
would
also
Plaintiff's
dismissed
be
see
and
Section
state-law
any
time-barred,
III.B.3.b.i,
breach
of
supra.
warranty
state-law-independent
these
MMWA
claims
must
MMWA
be
dismissed.26
26 Plaintiff also asserts a claim for expenses of litigation, including
attorney's fees and expenses, pursuant to O.C.G.A. § 13-6-11.
wIn order to
recover attorney fees as expenses of litigation pursuant to OCGA § 13-6-11,
the plaintiff must show that the defendant acted in bad faith, was stubbornly
litigious,
or caused the plaintiff unnecessary trouble and expense."
Fowler's Holdings, LLLP v. CLP Family Investments, L.P., 732 S.E.2d 777, 779
(Ga. Ct. App. 2012) .
XXA prerequisite to any award of attorney fees under
O.C.G.A. § 13-6-11," however, *is the award of damages or other relief on the
underlying claim."
United Companies Lending Corp. v. Peacock, 475 S.E.2d
50
IV,
Upon
due
foregoing,
Lack of
of
CONCLUSION
consideration
and
in
accordance
Personal
Jurisdiction
(doc.
jurisdiction oyer DIL.
32)
is
GRANTED
GRANTED due
the
to
Plaintiff's
can be granted.
this
case;
entry
of
addressing
Plaintiff
this
the
failure
If
Order
to
state
to
deficiencies
Defendants
file
lack
a
(doc.
33)
is
to proceed forward
second
(21)
days
amended
identified herein
DAA &
to
claim upon which
have twenty-one
complaint
as
all
but
DNA and only
(as
from
respective motions),
other issues raised in the Defendants'
only against
a
Plaintiff wishes
shall
due
IT IS FURTHER ORDERED that
DAA & DNA's Motion to Dismiss the Amended Complaint
with
the
IT IS HEREBY ORDERED that DIL's Motion to Dismiss for
personal
relief
with
as
well
to
its
first,
secondhand ninth counts27 against the aforementioned defendants.
Plaintiff's failure to replead within this timeframe as directed
may
result
in
the
dismissal
of
this
action
with
prejudice
without further notice.
ORDER ENTERED
February,
at
Augusta,
Georgia
this e3£^ day
of
2 017.
HONORABLE7 J . RANDAL HALL
UNITED STATES DISTRICT JUDGE
lERN DISTRICT OF GEORGIA
601, 602 (Ga. 1996).
Because all of Plaintiff's substantive claims have been
dismissed, so too must its claims under O.C.G.A. § 13-6-11.
27
i.e.,
(1)
Violation •of
the Magnuson-Moss
Warranty
Express Warranties; and (9) Attorney's Fees and Expenses.
51
Act;
(2)
Breach of
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?