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)

Download PDF
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, (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., 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?