Dermatology Specialists of Augusta, Inc. v. Daikin Industries, Ltd. et al
Filing
74
ORDER granting in part and denying in part 67 Motion to Dismiss. The Clerk is directed to terminate Defendant Daikin AC (Americas), Inc. Plaintiffs' claim against Defendants Daikin Applied Americas, Inc. and Daikin Applied Georgia, however, s hall proceed. The Clerk is directed to terminate Daikin Industries, Ltd and Daikin North America, LLC as Defendants in the case because Plaintiffs' have not named those parties in their Third Amended Complaint. The parties shall conduct a Rule 2 6(f) conference within twenty-one days of the date of this Order and file a joint 26(f) report within seven days of the date of the conference. Upon receipt of the 26(f) report, the United States Magistrate Judge shall issue a scheduling order. Signed by Chief Judge J. Randal Hall on 01/03/2019. (thb)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
DERMATOLOGY SPECIALISTS OF
*
AUGUSTA, INC.; and PAWS HOLDING, *
LLC, on behalf of themselves and *
all others similarly situated,
*
*
Plaintiffs,
*
*
V.
*
CV 116-058
*
DAIKIN APPLIED AMERICAS INC.;
*
DAIKIN AC (AMERICAS), INC.; and
DAIKIN APPLIED GEORGIA,
*
*
Ik-
Defendants.
*
ORDER
Pending before the Court is Defendants' motion to dismiss
Plaintiffs' Third Amended Complaint, the third motion to dismiss
filed in this case.
On January 18, 2018, this Court granted in
part Defendants' motion to dismiss Plaintiff PAWS Holding, LLC's
(^'PAWS") Second Amended Complaint.
The Court, however, granted
PAWS leave to amend its complaint with respect to its claim for
the implied warranty of merchantability.
PAWS renewed that claim
by filing its Third Amended Complaint on February 8, 2018.
PAWS
also joined its tenant. Dermatology Specialists of Augusta, Inc.
("DSA"),
as
Plaintiff
and
named
Daikin
Applied
Americas
Inc.
C'Daikin Applied"), Daikin AC (Americas), Inc. ("Daikin AC"), and
Daikin Applied Georgia
C'DAG") as Defendants.^
For the reasons
set forth below, Defendants' Motion to Dismiss Plaintiffs' Third
Amended Complaint (doc. 67) is GRANTED IN PART AND DENIED IN PART.
I.
This
case
experienced
arises
with
their
out
BACKGROUND
of
HVAC
numerous
system,
manufactured, and sold by Defendants.
problems
which
62, f 20.)
designed,
In March 2010, Plaintiffs
installed a Daikin variable refrigerant volume
DSA's medical office in Evans, Georgia.
was
Plaintiffs
C'VRV") system at
(Third Am. Compl., Doc.
Daikin AC designed, manufactured, and warranted the
VRV system, while Daikin Applied and DAG sold and distributed it.
(Id.
3-5.)
Plaintiffs' VRV system is comprised of two outdoor
VRV III Inverter units and sixteen interior units.
(Id. SI 21.)
VRV systems include evaporator coils that contain ''refrigerant gas
that absorb heat from air," and condenser coils "that condense the
refrigerant gas back into a liquid, expelling heat."
(Id. SI 11.)
These
that
coils
"are
designed
to
be
sealed
systems
house
refrigerant for recirculation" and "do not deplete with use." (Id.
SI 12.)
Plaintiffs base their claim for breach of the implied
^ The Clerk is DIRECTED to terminate Daikin Industries, Ltd and Daikin North
America, LLC as Defendants in the case because Plaintiffs have not named those
parties in their Third Amended Complaint.
(Doc. 62, 15 3-5.)
warranty of merchantability on these allegedly defective coils.
(Id. SISI 65-67, 70.)
Less than a month after installation Plaintiffs' VRV system
began to have problems.
(Id. 55 23, 24.)
During the first four
years of operation. Plaintiffs' system experienced intermittent
shut downs, cracked condenser coils, leaks of refrigerant gas, and
corrosion.
were
in
(Id. 55 27, 28, 41.)
contact
with
Daikin
Throughout this time. Plaintiffs
Applied's
employee
Simon Awadalla
regarding these issues and attempted to find a solution.
24, 29.)
(Id. 55
The solutions ranged from inspections, pleas to Daikin
senior executives for help, system reboots, installing replacement
coils, refrigerant refills, and installing replacement units, all
requiring considerable expenditures by Plaintiffs.
41.)
(Id. 55 26-
None of these actions, however, resolved the VRV system's
problems to Plaintiffs' satisfaction.
The VRV system's malfunctions caused Plaintiffs' employees to
suffer
from
''exhaustion,
profuse
sweating,
mild
dehydration,
nausea, headaches, and general discomfort," as well as requiring
DSA to close its business early on numerous occasions, leading to
lost profits.
(Id. 5 45.)
Plaintiffs allege the system's issues
stem from defective evaporator and condenser coils, which render
the
entire
VRV
system
defective.
(Id.
55
15,
28,
41.)
Specifically, the coils exhibit manufacturing and design defects
because the manner in which the aluminum fins are attached to the
copper
tubing
of
the
coils
"promotes
crevice
formation,
accumulation of corrosive agents, localized corrosion, and leaking
of
refrigerant
Defendants
gas."
were
publications
(Id.
aware
revealed
of
the
1
13.)
these
Plaintiffs
issues,
corrosion
that
problems,
allege
industry
that
that
trade
Defendants
discontinued their line of interior units installed in Plaintiffs'
building, and that Defendants failed to disclose the defects to
Plaintiffs or recall the coils. (Id. 5 16, 18.)
While Plaintiffs' Third Amended Complaint details multiple
failures
of
different
communications
with
parts
Defendants
of
to
its
VRV
system
effectuate
and
repairs
various
of
those
parts, their breach of implied warranty claim is based solely on
the failure of a replacement coil installed in an interior unit on
August 19, 2014.
in January 2017.
repair
company
(Id. SISI 33, 66.)
(Id. 11 A2, 66.)
$7000
to
refrigerant. (Id. 1 42.)
inspect
That replacement coil failed
DSA paid a third-party HVAC
and
refill
the
system
with
The inspection revealed that corrosion
of the replacement coil caused refrigerant gas to leak.
(Id. iSI
42, 66.)
When the replacement coil failed, this lawsuit had already
been initiated and Defendants' first motion to dismiss was pending.
On February 22, 2017, this Court granted Defendants' first motion
to dismiss and gave PAWS leave to amend its complaint.
of Feb. 22, 2017, Doc. 51, at 51.)
(See Order
On March 15, 2017, PAWS filed
its Second Amended Complaint, which added a claim for breach of
the implied warranty of merchantability for the 2014 replacement
coil.
(Second Am. Compl., Doc. 52, SIS 48-62.)
On March 31, 2017,
Plaintiffs decided to part ways with Defendants and installed a
new HVAC system manufactured by one of Defendants' competitors.
(Third Am. Compl., S 43.)
Thereafter,
Defendants
filed
another . motion
to
dismiss
arguing PAWS's Second Amended Complaint failed to state a claim
for breach of the implied warranty of merchantability.
(Doc. 55.)
The Court granted Defendants' motion on that claim because PAWS
failed to allege privity with any Defendant by not identifying
which Defendant sold the replacement coil.
2018, Doc. 61, at 13.)
(Order of Jan. 18,
Plaintiffs have now, with permission of
the Court, filed their Third Amended Complaint bringing a claim
for breach of the implied warranty of merchantability for the 2014
replacement coil.
(Third Am. Compl., SS 63-80.)
Defendants again
filed a motion to dismiss arguing Plaintiffs failed to state a
claim
because
required
by
they
did
O.C.G.A.
not
provide
notice
§ 11-2-607(3)(a),
and
of
the
because
breach,
as
Defendants
disclaimed the implied warranty of merchantability in the "Limited
Warranty" that accompanied the purchase of Plaintiffs' VRV system
in 2010.2
(Doc. 67.)
2 Plaintiffs attached the Limited Warranty agreement to their Third Amended
Complaint.
(Doc. 62-5, Ex. E.)
II.
A
motion
12(b)(6)
does
to
dismiss
not
test
LEGAL STANDARD
under
Federal
whether
the
of Civil
plaintiff
prevail on the merits of the case.
sufficiency of the complaint.
Rule
will
Procedure
ultimately
Rather, it tests the legal
Swierkiewicz v. Sorema N.A., 534
U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)).
Therefore, the
court
must
accept
as true
all facts
alleged in the complaint and construe all reasonable inferences in
the light most favorable to the plaintiff.
See Hoffman-Pugh v.
Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002).
The court, however, need not accept the complaint's legal
conclusions as true, only its well-pled facts.
556 U.S. 662 (2009).
Ashcroft v. Iqbal,
A complaint also must ''contain sufficient
factual matter, accepted as true, 'to state a claim to relief that
is plausible on its face.'"
Id. at 678 (quoting Bell Atl. Corp.
V. Twombly, 550 U.S. 544, 570 (2007)).
to
plead "factual
content that
reasonable
inference
misconduct
alleged."
that
the
The plaintiff is required
allows
the
defendant
Although
court to draw
is
there
is
liable
no
for
the
the
probability
requirement at the pleading stage, "something beyond . . . mere
possibility . . . must be alleged."
Twombly, 550 U.S. at 556-57
(citing Durma Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005)).
III.
DISCUSSION
In their motion, Defendants renew two arguments from their
previous motion to dismiss.
First, they contend that Plaintiffs
failed to provide notice of the breach after the replacement coil
failed in January 2017.
Second, they maintain that the Limited
Warranty provided with the VRV system installed in 2010 disclaims
the implied warranty of merchantability for replacement parts.
The Court will address each argument in turn.
A.
Notice of the Breach
In Georgia, a warranty that goods shall be merchantable is
implied into a contract for their sale if the seller is a merchant
in goods of that kind.
O.C.G.A. § 11-2-314(1).
Generally, to be
merchantable, a good must pass without objection in the trade or
fit
the
ordinary
purpose
for
which
the
good
is
used.
O.C.G.A. § 11-2-314(2).
A
buyer
who
has
accepted
nonconforming
goods can
recover
damages for breach of an implied warranty only if the buyer ''within
a reasonable time after he discovers or should have discovered any
breach notif[ies] the seller."
purpose of this notice
O.C.G.A. § 11-2-607(3)(a).
provision is two-fold.
The
First, express
notice facilitates settlement through negotiation between parties.
Wal-Mart Stores, Inc. v. Wheeler, 262 Ga. App. 607, 610 (2003).
Second, notice reduces prejudice to the seller "by giving him ample
opportunity to cure the defect, inspect the goods, investigate the
claim or do whatever may be necessary to properly defend himself
or minimize damages while the facts are fresh in the minds of the
parties."
Id.
What constitutes a reasonable time depends on the nature,
purpose,
and
circumstances
of
a
case.
O.C.G.A. § 11-1-205.
Consistent with this rule, the Uniform Commercial Code's Official
Comments
instruct
a
more
lenient
notice
standard
for
retail
transactions in comparison to the commercial standards that apply
to merchant buyers.
U.C.C. § 2-607, Comment 4 (notice rule is
"designed to defeat commercial bad faith, not to deprive a good
faith consumer of a remedy")
App. at 608-09.
see also Wal-Mart Stores, 262 Ga.
The issue of whether notice was reasonably given
and sufficient to provide the defendant with an opportunity to
cure, however, is generally reserved for summary judgment or trial.
See Royal Typewriter Co., a Div. of Litton Bus. Sys. v. Xerographic
Supplies Corp., 719 F.2d 1092, 1102 (11th Cir. 1983) ("Where the
buyer gives some notice of the breach, the issue of timeliness and
sufficiency are questions of fact."); Int'l Multifoods Corp. v.
Nat'l Egg Prods., Div. of Hudson Foods, Inc., 202 Ga. App. 203,
266 (1991) ("The question of reasonableness of notice is ordinarily
a factual one, although summary adjudication is appropriate if the
3 The Georgia Court of Appeals has expressly approved of consulting the U.C.C.'s
Official Comments.
Sun v. Mercedes Benz Credit Corp., 254 Ga. App. 4 63, 4 65
(2002).
8
uncontroverted facts establish that a plaintiff is not entitled to
recover.
.
In some instances, service of a complaint satisfies the notice
requirement if no prejudice to the defendant results.
See Hudson
V. Gains, 199 Ga. App. 70, 72 (1991); Wal-Mart Stores, 262 Ga.
App. at 608-11; Terrill v. Electrolux Home Prods., Inc., 753 F.
Supp. 2d 1272, 1287 (S.D. Ga. 2010); but see Garcia v. Chrysler
Grp. LLC, 127 F. Supp. 3d 212, 226 n.ll (S.D.N.Y. 2015) (suggesting
Hudson^ s complaint notice rule could be limited to its facts, which
involved a buyer's warranty of title claim brought against a car
seller for vehicles that had been confiscated from the buyer as
stolen property).
The question of whether a defendant suffers
prejudice by notice through a complaint or delayed notice is also
more
properly
decided
on
summary
judgment
or
at
trial.
See
Terrill, 753 F. Supp. 2d at 1287 n.8 ("It is unlikely that a
defendant
could
ever
show
prejudice
at
the
motion
to
dismiss
stage.").
Plaintiffs
allege
breach
of
the
implied
warranty
of
merchantability for the replacement coil installed in August 2014,
which failed in January 2017.
Thus, as Defendants correctly point
out. Plaintiffs were required to give Defendants notice of this
breach
after
it
occurred
in
January
2017.
Accordingly,
the
numerous examples of notice alleged by Plaintiffs regarding their
VRV system's failures before January 2017 cannot, by themselves,
provide notice for the replacement coil implied warranty claim.
Alternatively, Plaintiffs contend that notice was provided by
service of the Second Amended Complaint (^'SAC") in this action on
March 16, 2017, approximately two months after the alleged breach.
The Court finds, as a matter of law, that this allegation of notice
satisfies the general pleading requirement and is sufficient to
withstand
a
motion
to
dismiss.
The
requirement supports this conclusion.
purpose
of
the
notice
At the time of the breach,
this lawsuit had been initiated and actively litigated.
Thus,
there were already strong motivations for the parties to engage in
settlement negotiations.
Further, Defendants cannot deny that
they were aware of the myriad of problems Plaintiffs endured with
the VRV system.
Finally, this was not the first time one of
Defendants' coils had failed in Plaintiffs' VRV system, and the
parties
had already engaged in lengthy discussions on
resolve the problems caused by defective coils in
how
to
Plaintiffs'
system.
Although
Plaintiffs'
Third
Amended
Complaint
does
not
specifically state that service of the SAC satisfies the notice
requirement, it does aver generally that notice was given and the
^ While these discussions occurred before the failure of the replacement coil
in 2017 and cannot independently satisfy the notice requirement, they are
instructive in considering whether the purpose of the notice requirement has
been served.
10
Court, even on a Rule 12(b)(6) motion, may consider matters in the
public record including prior filings in the case, such as the
SAC.
See Halmos v. Bomardier Aerospace Corp., 404 F. App'x 376,
377 (11th Cir. 2010) (per curiam); see also Tellabs, Inc. v. Makor
Issues &
Rights, Ltd., 55 U.S. 308, 322 (2007); 5A Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure § 1357,
at 376 (3d ed. 2004) (specifically noting that a court may refer
to ''items appearing in the record of the case").
Defendants
maintain
that
the
because it would prejudice them.
SAC
cannot
serve
as
notice
They argue that the sixteen-day
period between service of the SAC on March 16th and Plaintiffs'
decision to replace their entire VRV system with another product
on March 31st did not provide a meaningful opportunity to cure the
defect in the replacement coil, thereby prejudicing Defendants.
However, considering the seven-year history between Plaintiffs and
Defendants regarding the VRV system's failures and that litigation
had been ongoing for nearly a year at the time of the notice, the
Court, at this time, is unwilling to decide whether Defendants
suffered prejudice.
Issues of prejudice are inherently factual
questions best decided on summary judgment or at trial when the
factfinder can weigh the evidence, not at the motion to dismiss
stage.
See Terrill, 753 F. Supp. 2d at 1284 n.8 ("It is unlikely
that a defendant could ever show prejudice at the motion to dismiss
stage.").
Thus, construing the allegations in the light most
11
favorable to Plaintiffs, the
Court finds, as
a
matter of law.
Plaintiffs have sufficiently alleged that they provided notice to
Defendants
regarding
the
breach
of
the
implied
warranty
of
merchantability for the 2014 replacement coil.
B.
Implied Warranty of Merchantability Disclaimer
Next, Defendants argue that the disclaimer of any implied
warranty
of
merchantability
found
in
the
Limited
Warranty
agreement applies to the replacement coil installed in 2014.
The
Court, however, already held that the disclaimer does not apply to
the replacement coil.
(Order of Jan. 18, 2018, Doc. 61, at 13.)
The Limited Warranty, by its own terms, applies to a commercial
VRV system's ^'parts only and is limited in duration to one (1)
year
from
the
earlier
to
occur
of
(a)
the
date
of
original
installation . . . or (b) twenty-four (24) months from the date of
shipment by Daikin AC."
1.)
are
(Limited Warranty, Doc. 62-5, Ex. E, at
While replacement parts are included in the warranty, they
only
warranted
^'for
the
balance
applicable to the original part."
(Id.)
of
the
warranty
period
Essentially, the Limited
Warranty is only applicable for one year following the date of
installation of the VRV system.
only applies for one
It follows that, if the warranty
year, then the disclaimer of any implied
warranty applies for the same amount of time.
12
Because Plaintiffs' VRV system was installed in 2010, the
Limited Warranty was no longer in effect when the replacement coil
was installed in 2014.
In fact, Plaintiffs paid Daikin Applied
$600 for the replacement coil and $6,200 in repair costs.
Am. Compl., 5 33.)
(Third
Therefore, the disclaimer of implied warranties
found in the Limited Warranty cannot apply to the 2014 replacement
coil.
Finally, while Plaintiffs allege that Daikin Applied's
employee Simon Awadalla represented that the coil carried a oneyear replacement warranty,^ neither party contends that Defendants
included a disclaimer with the purchase of the replacement coil.
Defendants
brief
both
argue
admit
replacement coil.
no such admission.
the
Plaintiffs'
Limited
Third
Warranty
Amended
applied
Complaint
to
the
and
2014
The Court finds, however, that Plaintiffs made
Plaintiffs attached the Limited Warranty to
their Third Amended Complaint to allege contractual privity with
Daikin AC, not to make a claim based on the terms of the agreement.
Defendants point to Paragraph 69 of the amended complaint to prove
Plaintiffs admitted the Limited Warranty applies, but, again, that
allegation uses the warranty to show privity with Daikin AC.
Third Am. Compl., ^ 69.)
(See
Likewise, in their brief. Plaintiffs
carefully crafted their words by stating ''Defendant Daikin AC s
Limited Warranty, which applied to the purchase of the subject VRV
system in 2010 and covered original and replacement parts for one
s (Third Am. Compl., 1 32.)
13
year, established contractual privity with Daikin AC with respect
to
replacement
purchased
Dismiss,
parts,
in 2014."
Doc.
70,
including
(Pis.'
at
9.)
the
Mem. in
Again,
failed
Opp'n
replacement
to
Plaintiffs
Defs.'
use
the
coil
Mot.
to
Limited
Warranty to show privity with Daikin AC.
Accordingly, the Limited Warranty did not apply to the 2014
replacement coil
and the
disclaimer cannot be
used to
Plaintiffs' implied warranty of merchantability claim.
defeat
Because
the Limited Warranty does not apply to Plaintiffs' claim, the Court
need not consider the conspicuousness of the disclaimer.
C. Privity with Defendant Daikin AC
The
Court
is
still
not
convinced
that
Plaintiffs
have
adequately alleged privity with Daikin AC,® an essential element
to an implied warranty of merchantability claim.
See Gille v.
Blue Bird Body Co., 147 F. App'x 807, 809-10 (11th Cir. 2005).
In
their
AC
Third
Amended
Complaint,
Plaintiffs
allege
Daikin
manufactured the 2014 replacement coil and use the Limited Warranty
to establish privity with that Defendant.
69.)
(Third Am. Compl., SISI 5,
Further, Daikin Applied and Daikin Applied Georgia sold and
distributed
the
replacement
establishing privity.
coil
to
Plaintiffs,
thereby
(Id. SISI 3, 4, 69.)
® The Court's previous Order on Defendants' Motion to Dismiss the Second Amended
Complaint found that Plaintiffs failed to allege privity with any Defendant.
(Order of Jan. 18, 2018, at 13.)
14
In Georgia, the general rule is that no implied warranty runs
from a manufacturer to a remote consumer because no privity of
contract
exists
between
them.
Chaffin
v.
Bottling Co., 127 Ga. App. 619, 619 (1972).
Atlanta
Coca-Cola
Privity between a
remote consumer and a manufacturer can exist, however, where the
"manufacturer,
through
its
authorized
dealer[,] issues to
the
purchaser of one of its automobiles from such dealer[,] admittedly
as part of the sale[,] a warranty by the manufacturer running to
the purchaser."
Chrysler Corp. v. Wilson Plumbing Co., Inc., 132
Ga. App. 435, 437 (1974); Jones v. Cranman^s Sporting Goods, 142
Ga. App. 838, 842 (1977) (applying rule to the sale of a gun);
Terrill, 753 F. Supp. 2d at 1288 (washing machine).
This exception
to the general privity rule is a means of implying privity where
the sale is effectively a direct sale between the manufacturer and
the remote consumer.
See Studebaker Corp. v. Nail, 82 Ga. App.
779, 783 (1950) (characterizing this type of transaction as "in
effect
a
direct
manufacturer).
purchase"
by
the
remote
consumer
from
the
The essential element to bridge the privity gap is
the manufacturer providing an express warranty for the product
sold to the remote consumer.
Here, the Limited Warranty issued by Daikin AC for the VRV
system cannot imply privity with Plaintiffs for the replacement
coil.
As discussed above, the Limited Warranty does not apply to
the coil.
The purchase of the coil was a separate sale from the
15
original system.
Although Daikin AC manufactured both products,
it only issued an express warranty — the
privity gap - for
the
VRV
system,
key to bridging the
not the
replacement
coil.
Because Plaintiffs' claim is based solely on the 2014 replacement
coil, they cannot
use
the 2010 Limited
privity with Daikin AC.
Warranty to establish
Thus, the general manufacturer privity
rule applies, and Plaintiffs are not in privity with Daikin AC,
the coil's manufacturer.
Plaintiffs
further
allege
that
Daikin
Applied's
employee
Simon Awadalla ^'represented via email that the coil carried a one-
year replacement warranty," but "did not specify which
entity offered the warranty."
(Third Am. Compl., SI 32.)
Daikin
Further,
"on information and belief. Plaintiffs allege that Daikin Applied
and/or Daikin AC is the warrantor of the replacement coil."
(Id.)
These allegations are insufficient to establish privity between
Daikin AC and Plaintiffs for the 2014 replacement coil.
Further,
the
failure
of
the
coil
occurred
well
past
expiration of any possible one-year replacement warranty.
implying privity between a manufacturer and
generally involve
warranty.
breaches that
occur
a
during
the
Cases
remote consumer
the
life
of the
See, e.g., Hemmings v. Camping Time RV Ctrs., LLC, 2017
WL 4552896 at *6 (N.D. Ga. Oct. 11, 2017) (claimed breach occurred
when
manufacturer's
express
warranty
was
still
in
effect);
Terrill, 753 F. Supp. 2d at 1288 (same); cf. Lauria v. Ford Motor
16
Co./ 169 Ga. App. 203, 205-06 (1983) (warranty for car repair made
by manufacturer's authorized dealership did
not create privity
between the manufacturer and the plaintiff because the vehicle was
"purchased
from
a
private
warranty" and because
manufacturer
under
complaint does
not
party,
and
the dealership
their
no longer
under factory
was not an
agent of the
agreement).
adequately
allege
Regardless,
privity
with
Plaintiffs'
Daikin
AC.
Therefore, Plaintiffs have failed to establish a claim for implied
warranty of merchantability against Daikin AC, and that Defendant
shall be dismissed.
IV.
CONCLUSION
Based on the foregoing. Plaintiffs have stated a claim for
breach of the implied warranty of merchantability regarding the
2014 replacement coil.
As discussed above. Plaintiffs complied
with O.C.G.A § 11-2-607(3)(a)'s notice requirement by filing their
Second Amended Complaint and the implied warranty disclaimer does
not apply to the replacement coil.
sufficiently allege
privity
with
However, Plaintiffs did not
Defendant
Defendant is due to be dismissed.
Daikin
AC
and
Therefore, Defendants' motion
to dismiss (doc. 67) is GRANTED IN PART AND DENIED IN PART.
Clerk is DIRECTED to terminate
Inc.
Plaintiffs'
claim
that
The
Defendant Daikin AC (Americas),
against
Defendants
Daikin
Applied
Americas, Inc. and Daikin Applied Georgia, however, shall proceed.
17
The Clerk is further DIRECTED to terminate Daikin Industries, Ltd
and Daikin North America, LLC as Defendants in the case because
Plaintiffs' have not named those parties in their Third Amended
Complaint.
The parties SHALL conduct a Rule 26{f) conference
within twenty-one days of the date of this Order and file a joint
26(f) report within seven days of the date of the conference.
Upon
receipt of the 26(f) report, the United States Magistrate Judge
SHALL issue a scheduling order.
ORDER ENTERED at Augusta, Georgia, this
^^7day of January,
2019.
JUDGE
UNITED /STATES DISTRICT COURT
lOUTHERN
18
DISTRICT OF GEORGIA
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