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