Schutte v. Corelle Brands Holdings Inc. et al
Filing
72
MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 9/30/2019. Mailed notice(gel, )
Case: 1:18-cv-04198 Document #: 72 Filed: 09/30/19 Page 1 of 36 PageID #:772
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TRICIA FULLERTON, et al.,
Plaintiffs,
Case No. 18-cv-4152
v.
Judge John Robert Blakey
CORELLE BRANDS, LLC (previously
d/b/a World Kitchen, LLC), et al.,
Defendants.
MARCIA SCHUTTE, et al.,
Plaintiffs,
Case No. 18-cv-4198
v.
Judge John Robert Blakey
CORELLE BRANDS, LLC (previously
d/b/a World Kitchen, LLC), et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This consolidated class action involves seven plaintiffs from six different states
suing Defendants Corelle Brands LLC, f/k/a World Kitchen, LLC, and Corelle Brands
Holdings Inc., f/k/a WKI Holding Company, Inc. (collectively, “Corelle”) for various
claims arising from the allegedly defective manufacturing of Pyrex glassware.
Defendants move to dismiss Plaintiffs’ claims under Federal Rule of Civil Procedure
12(b)(6).
Defendants also move to strike portions of the Consolidated Amended
Complaint under Federal Rule of Civil Procedure 12(f).
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For the reasons explained below, this Court grants in part and denies in part
Defendants’ motion.
I.
Background
A.
The Parties
This putative class action arises from a change in the glass used to
manufacture Pyrex glassware (the Products).
The following facts come from
Plaintiffs’ First Amended Complaint, [26], and are accepted as true. 1
Defendants currently manufacture and market the Products.
Id. ¶ 28.
Corning Incorporated originally developed and manufactured the Products. Id. ¶¶
20–23. Although Corning no longer manufacturers the Products, it licenses the Pyrex
name to Corelle. Id.
Beginning in the early 1900s, Corning manufactured the Products using
borosilicate glass. Id. ¶ 34. This glass is extremely resistant to thermal shock caused
by sudden temperature changes.
Id. ¶¶ 4, 35–37.
For that reason, when
manufactured using borosilicate glass, the Products are ideal for cooking because the
same glass container can be used for cooking and serving without shattering, which
does not hold true of most glassware. Id. ¶¶ 36–37. Capitalizing on this fact, Corning
advertised the Products as being suitable for use from the “ice-box to oven” and to
As this case is a consolidated case, Defendants filed identical motions to dismiss the Consolidated
Amended Class Action in both cases. Memorandum in Support of Motion to Dismiss, Fullerton v.
Corelle Brands, LLC, Case No. 1:18-cv-4152 (No. 38); Memorandum in Support of Motion to Dismiss,
Schutte v. Corelle Brands, LLC, Case No. 1:18-cv-4198 (No. 44). For simplicity, this Court references
the docket numbers of the filings in Fullerton v. Corelle Brands, LLC, Case No. 1:18-cv-4152.
1
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“Bake in a glass!” Id. ¶¶ 64–66. Eventually Pyrex bakeware became a “household
name” and gained a strong reputation among consumers. Id. ¶ 3.
Plaintiffs are consumers living in multiple states: New York, Florida,
Michigan, Illinois, Ohio, and Massachusetts. Id. ¶¶ 13–19. Plaintiffs purchased or
received the Products and used them for cooking. Id. ¶¶ 92–118. When Plaintiffs
used the Products, they experienced thermal breakage and the Products shattered.
Id. Plaintiffs allege that the Products suffer from a latent defect. Id. ¶¶ 5, 9. Based
upon this alleged defect, Plaintiffs assert various contract, consumer protection, and
unjust enrichment claims. Id. ¶¶ 135–466. None allege personal injury. Id.
B.
The Switch from Borosilicate Glass to Soda Lime Glass
At some point starting “several decades ago,” id. ¶ 38, Corning, and later
Corelle, began manufacturing the Products using soda lime glass instead of
borosilicate, id. Significantly, soda lime glass has a higher coefficient of thermal
expansion than borosilicate glass. Id. ¶¶ 42–46. Practically speaking, this means
that soda lime glass expands more when heated. Id. ¶ 44. In turn, Plaintiffs allege
that because soda lime glass expands more when heated, it is significantly more prone
to shattering or breaking when exposed to rapid temperature changes, such as
moving an item from the oven to the countertop.
Id. ¶¶ 43–46.
Additionally,
Plaintiffs allege that the likelihood of soda lime Pryex shattering increases with use
over time. Id. ¶¶ 47–49.
To make the soda lime more glass more heat resistant, Defendants temper the
glass. Id. ¶ 50. Plaintiffs allege that the tempering process: (1) increases the risk of
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breakage when consumers use the Product over time; (2) causes the glass to shatter
rather than “dicing” into safer, small pieces when it breaks; and (3) increases the risk
that broken glass will “fly through the air” due to the process’ creation of internal
tension in the glass. Id. ¶¶ 52–58.
Although soda lime glass remains more prone to thermal breakage than
borosilicate glass, Plaintiffs allege that Defendants failed to inform consumers that
they fundamentally changed the Products. Id. ¶¶ 1–9, 86–91. Instead, Plaintiffs
allege Defendants continued to advertise the Products in the same manner they had
previously to create an impression that the Products had not changed; thereby
continuing to capitalize on Pyrex’s strong consumer reputation earned from the
borosilicate products’ performance. Id.
C.
Relevant Representations
Plaintiffs identify several relevant representations that they believe became
part of the bargain when they purchased the Products. Plaintiffs allege Defendants
represented that:
•
Where Defendants do disclose the Products are made from soda lime
glass (on an online FAQ), they represent that soda lime glass provides
the same high-quality performance as borosilicate glass. Id. ¶ 7 n.3.
•
The Products as currently manufactured are versatile. Id. ¶ 67.
•
The Products as currently manufactured are dishwasher, refrigerator,
microwave, and pre-heated oven safe. Id.
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•
The Products as currently manufactured can be used for cooking,
baking, warming, and reheating food in microwaves, ovens, and preheated conventional or convection ovens. Id. ¶ 90.
Plaintiffs claim that the Products as currently manufactured are inherently
incapable of meeting Defendants’ representations. Id. ¶¶ 34–58, 69–70.
II.
Legal Standard
A.
Motion to Dismiss—Rule 12(b)(6)
Defendants seeks to dismiss the Complaint for failure to state a claim under
Rule 12(b)(6). To analyze a motion to dismiss under Rule 12(b)(6), this Court must
construe the Complaint in the light most favorable to the plaintiffs, accept as true all
well-pleaded facts, and draw reasonable inferences in their favor. Yeftich v. Navistar,
Inc., 722 F.3d 911, 915 (7th Cir. 2013); Bonte v. U.S. Bank, N.A., 624 F.3d 461, 863
(7th Cir. 2010). Statements of law, however, need not be accepted as true. Yeftich,
722 F.3d at 915. Rule 12(b)(6) limits this Court’s consideration to “allegations set
forth in the complaint itself, documents that are attached to the complaint,
documents that are central to the complaint and are referred to in it, and information
that is properly subject to judicial notice.” Williamson v. Curran, 714 F.3d 432, 436
(7th Cir. 2013).
To survive Defendants’ motion under Rule 12(b)(6), the Complaint must “state
a claim to relief that is plausible on its face.” Yeftich, 722 F.3d at 915. For a claim to
have facial plausibility, a plaintiff must plead “factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
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alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The amount of factual
allegations required to state a plausible claim for relief depends on the complexity of
the case, but threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice. Limestone Dev. Corp. v. Vill. Of Lemont,
520 F.3d 797, 803–04 (7th Cir. 2008).
Finally, if the claims of the putative class do not have a class representative to
assert them, those claims must be dismissed. See Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 349 (2011); E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403
(1977).
B.
Motion to Strike—Rule 12(f)
Under Federal Rule of Civil Procedure 12(f), “a district court ‘may strike from
the pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.’” Geary v. Maryville Acad., No. 12 C 1720, 2012 WL 2129228, at
*1 (N.D. Ill. June 12, 2012) (quoting Delta Consulting Group, Inc. v. R. Randle Const.,
Inc., 554 F.3d 1133, 1141 (7th Cir. 2009)). Motions to strike are generally disfavored
but are nevertheless appropriate when “they serve to expedite litigation.” Id. (citing
Heller Fin., Inc. v. Midwhey Powder, 883 F.2d 1286, 1294 (7th Cir. 1989)).
III.
Analysis
A.
Standing
Although Defendants did not challenge standing, this Court has an
independent obligation to consider whether it has subject matter jurisdiction over the
claims in this case. Joyce v. Joyce, 975 F.2d 379, 386 (7th Cir. 1992). The Constitution
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prohibits this Court from exercising jurisdiction over a plaintiff’s claim when the
plaintiff has not alleged facts demonstrating he or she has standing. Lujan v. Def. of
Wildlife, 504 U.S. 555, 560 (1992); see also Carello v. Aurora Policemen Credit Union,
930 F.3d 830, 833 (7th Cir. 2019) (“The doctrine of standing imposes a non-negotiable
limit on the power of a federal court.”). Indeed, establishing standing is not a “mere
pleading requirement but rather an indispensable part of the plaintiff’s case.” Lujan,
504 U.S. at 561. When a plaintiff fails to demonstrate standing, courts lack authority
to decide the merits of his or her case. Meyers v. Nicolet Rest. of De Pere, LLC, 843
F.3d 724, 726 (7th Cir. 2016) (citing Freedom From Religion Found., Inc. v. Zielke,
845 F.2d 1463, 1467 (7th Cir. 1988)). Standing requires, among other things, that
the plaintiff suffered an injury in fact. Lujan, 504 U.S. at 560.
With this background in mind, this Court turns to whether Plaintiffs Simon
and Fullerton possess standing to assert their claims. Both individuals base their
claims upon the failure to receive the benefit of the bargain. [26] ¶¶ 94, 108. In other
words, Plaintiffs seek damages meant to give them the benefit they expected to
receive from the contract they made with Defendants. E. Allen Farnsworth, Legal
Remedies for Breach of Contract, 70 COLUM. L. REV. 1145, 1147–48 (1970).
Yet neither Plaintiff Simon nor Plaintiff Fullerton purchased the Products.
[26] ¶¶ 92, 103. Plaintiff Fullerton’s boyfriend purchased her Pyrex, and Plaintiff
Simon received Pyrex as a gift.
Id.
Because neither individual purchased the
Products, neither Plaintiff failed to receive the benefit of the bargain as they did not
strike a bargain with Defendants by purchasing the Products. For this reason, this
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Court must dismiss their claims for lack of standing. Lujan, 504 U.S. at 563 (in order
to establish injury to confer standing, the plaintiff must be among the injured)
(quoting Sierra Club v. Morton, 405 U.S. 727, 734 (1972)).
Consequently, this Court dismisses all of Plaintiffs Simon’s and Fullerton’s
claims without prejudice. Additionally, because Plaintiff Simon is the only class
representative asserting claims based upon Michigan law, Plaintiffs’ claims asserting
violations of Michigan law are dismissed because the putative class claims cannot
proceed without a class representative, Wal-Mart Stores, 564 U.S. at 49; E. Tex. Motor
Freight Sys., 431 U.S. at 403 (1977), this claim cannot proceed.
B.
Express Warranty Claims
Turning now to the individual claims, this Court first analyzes the remaining
Plaintiffs’ contract claims.
1. Scope of the Warranty
Plaintiffs allege Defendants sold the Products with several express warranties
attached. [26] ¶¶ 140, 161, 179, 197, 215, 232, 249; [45] at 23–24. Defendants contest
the existence of some express warranties, challenge that they did not breach others,
and argue that Plaintiffs failed to state a claim for some of their express warranty
allegations. [38] at 8–15. This Court will consider these arguments in turn.
As a threshold matter, the parties disagree about the applicable express
warranties. Defendants attempt to restrict Plaintiffs’ express warranty claims to the
Pyrex Limited Two-Year Warranty (the Limited Warranty). [38] at 8–9. The Limited
Warranty anticipates that the Products might experience thermal breakage and
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promises replacement if the Products break and the consumer followed Defendants’
usage instructions. Id. at 8–9, (Ex. A). 2 In contrast, Plaintiffs argue that other
express warranties also attached based upon Defendants’ representations to
consumers that the Products were high-quality, versatile, and safe to use in a variety
of settings. [45] at 23–24.
Under New York, Illinois, Florida, Ohio, and Massachusetts law, an express
warranty includes “any affirmation of fact or promise made by the seller to the buyer
which relates to the goods and becomes part of the basis of the bargain . . . [or] [a]ny
description of the goods which is made part of the basis of the bargain.” N.Y. U.C.C.
Law § 2–313; 810 ILCS 5/2-313; FLA. STAT. § 672.313(1); OHIO REV. CODE § 1302.26;
MASS. GEN. LAWS ch. 106 § 2–313.
Viewed in the light most favorable to Plaintiffs, Defendants’ representations
that the Products as currently manufactured are high-quality, versatile, and safe to
use in a variety of settings including high temperatures and sudden heat changes
could constitute an affirmation of fact or promise and/or a description of the goods
that is part of the basis of bargain. Therefore, Plaintiffs sufficiently allege breach of
express warranty beyond the Limited Warranty.
This Court will now consider
Defendants’ challenges to the sufficiency of the individual express warranty claims.
Because Plaintiffs reference Defendants’ Limited Warranty and instructions in their Complaint, [26]
¶¶ 87 n.53, 91, this Court may consider them without converting Defendants’ motion into a motion for
summary judgment. Wright v. Associated Ins. Co. Inc., 29 F.3d 1244, 1248 (7th Cir. 1994).
2
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2. Timeliness of Plaintiffs’ New York and Massachusetts Express Warranty
Claims (Counts 2 and 7)
Under New York and Massachusetts law, warranty claims must be asserted
within four years after the cause of action accrued. N.Y. U.C.C. § 2–725(1) (“An action
for breach of any contract for sale must be commenced within four years after the
cause of action has accrued.”); MASS. GEN. LAWS ANN. ch. 106 § 2–725(1) (same). A
cause of action accrues when the goods are tendered, not when the defect is
discovered. N.Y. U.C.C. § 2–725(2); MASS. GEN. LAWS ANN. ch. 106 § 2–725(2). While
certain exceptions exist, id., those exceptions do not apply here, Jackson v. Eddy’s LI
RV Ctr., Inc., 845 F. Supp. 2d 523, 532 (E.D.N.Y. 2012) (accrual of the plaintiff’s
claims may only be delayed when the warranty explicitly extends to future
performance and the nonbreaching party must wait until that performance occurs).
Plaintiffs Slepian and Klein purchased the relevant Pyrex products more than
four years ago. [26] ¶¶ 95, 116. For that reason, Plaintiffs fail to allege that they
timely asserted their claims. See id. ¶¶ 133–34. Instead they argue Defendants’
actions tolled the statute of limitations, id., because Defendants allegedly concealed
the “true character, nature, and quality of soda lime Pyrex,” id. ¶ 133.
Yet
Defendants expressly disclosed on the Limited Warranty and safety instructions that
accompany all Pyrex products that Defendants’ Pyrex may shatter when exposed to
a sudden change in temperature. See, e.g., [38] (Exs. A-C).
And, as Plaintiffs also
note in their Complaint, public documents, which Plaintiffs could have discovered
with reasonable diligence, detail that Pyrex made from soda lime glass remained
more susceptible to shattering when exposed to sudden temperature changes. See,
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e.g., [26] ¶¶ 46, 59. Finally, mere silence or failure to disclose the complained of
wrongdoing remains, without more, insufficient to find Defendants actively concealed
the defect. Martin Hilti Family Tr. v. Knoedler Gallery, LLC, 137 F. Supp. 3d 430,
468 (S.D.N.Y. 2015). Thus, even construing the facts in the light most favorable to
Plaintiffs, Defendants’ actions fail to constitute fraudulent concealment thereby
equitably tolling the statute of limitations. Stat. Phone Philly v. NYNEX Corp., 116
F. Supp. 2d 468, 482–83 (S.D.N.Y. 2000); Abdallah v. Bain Cap. LLC, No. 12–12027–
DPW, 2013 WL 3491074, at *4 (D. Mass. July 9, 2013). Accordingly, this Court
dismisses Plaintiffs Slepian’s and Klein’s breach of express warranty claims under
New York and Massachusetts law as untimely.
3. Florida Express Warranty Claims (Count 3)
Defendants’ argue that Plaintiff Grau’s Florida express warranty claim fails to
allege a specific representation that she relied upon when purchasing the Products
as required to state a claim under Florida law. [38] at 12–13. Although the Florida
Uniform Sales Act casts doubt on whether reliance remains an element of a claim for
breach of express warranty, see FLA. STAT. § 672.313 n.3, Florida courts continue to
treat reliance as an essential element of a breach of express warranty claim, see, e.g.,
Martin v. SmithKline Beecham Corp., Case No. 06-80456-CIV-RYSKAMP/VITUNAC,
2006 WL 8433438, at *7 (S.D. Fla. Aug. 15, 2006); Thursby v. Reynolds Metals Co.,
466 So.2d 245, 250 (Fla. Dist. Ct. App. 1984). Therefore, this Court treats reliance as
an element of the claim under Florida law.
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Plaintiff Grau, however, has not alleged what representations Defendants
made that she relied upon when purchasing her Pyrex. See [26] ¶¶ 99–102. Without
alleging reliance, Plaintiff Grau fails to sufficiently allege a claim for breach of
express warranty under Florida law. Martin, 2006 WL 8433438, at *7 (dismissing
the plaintiff’s express warranty claim because although the plaintiff alleged the
defendant made various representations to the general public, “[n]owhere [did she]
allege that she purchased or ingested Wellbutrin because she acted in reliance on an
advertisement or representation by [the defendant]”) (emphasis in original). As such,
this Court grants without prejudice Defendants’ motion to dismiss her claim.
4. Ohio Express Warranty Claim (Count 6)
Defendants next argue that Plaintiff Schutte’s express warranty claims are
deficient because she failed to allege how she gave Defendants notice prior to filing
suit. [38] at 13. Under Ohio law, “the buyer must within a reasonable time after he
discovers or should have discovered any breach notify the seller of breach or be barred
from any remedy.” OHIO REV. CODE § 1302.65(C)(1). Plaintiff Schutte concedes she
did not provide Defendants pre-suit notice. [45] at 25–26. Rather, she argues that
no notice obligation exists because Defendants already knew of the defect and, thus,
they already knew they were in breach.
Id.
But, even if Defendants have
independent knowledge of their breach, a plaintiff must still provide pre-litigation
notice. St. Clair v. Kroger Co., 581 F. Supp. 2d 896, 902 (N.D. Ohio 2008). Ohio law
imposes this requirement not only to inform the defendant of the breach, but also to
provide the parties an opportunity to resolve their claims and avoid litigation
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altogether by curing the defect. Id. at 903. For this reason, Defendants’ motion to
dismiss Plaintiff Schutte’s express warranty claims is granted with prejudice.
5. Breach of the Limited Warranty for Plaintiffs’ Illinois Claim (Count 5)
As to Plaintiff Cashmore’s breach of the Limited Warranty claim, Defendants
argue her claim should be dismissed for her failure to fulfill her obligations under the
Limited Warranty, which required her to request a replacement. [38] at 10. Plaintiff
Cashmore, however, counters that the Limited Warranty’s sole remedy—to replace
the Products with new Pyrex also made from soda lime glass—fails its essential
purpose and/or is unconscionable because the new Product will suffer from the same
latent defect. [26] ¶¶ 151–53.
Under Illinois law, a warranty term may be unenforceable when the warranty
is unconscionable. Stavropoulos v. Hewlett-Packard Co., No. 13 C 5084, 2014 WL
2609431, at *2–*4 (N.D. Ill. June 9, 2014). If the warranty term is unenforceable,
then compliance with that term is unnecessary. Id. In this case, Plaintiff Cashmore
alleged that the Products contain a latent defect that Defendants knew of when they
sold the Products. [26] ¶¶ 5, 9, 69–70. Moreover, she further alleges that her only
remedy under the Limited Warranty would be to receive another Product containing
the same latent defect, which is no remedy at all. Id. ¶¶ 151–52. As such, Plaintiff
Cashmore has sufficiently stated a claim for procedural unconscionability thus
making the Limited Warranty’s terms unenforceable.
Stavropoulous, 2014 WL
2609431, at *2–*4. Therefore, Plaintiff Cashmore’s allegations remain sufficient to
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sustain a breach of contract claim under the Limited Warranty, even though she did
not request a replacement.
C.
Implied Warranty Claims
Plaintiffs also allege violations of various implied warranty laws. [26] ¶¶ 265–
345. They allege that the Products are not fit for use as versatile bakeware. Id.
Defendants present multiple arguments as to why Plaintiffs’ implied warranty claims
should be dismissed. [38] at 17–21.
First, they argue that all of Plaintiffs’ claims should be summarily dismissed
because they fail to allege the Products do not perform as reasonably expected. Id. at
18–19. In this case, though, Plaintiffs sufficiently alleged facts that a consumer might
reasonably expect the Products to withstand sudden temperature changes better
than they currently do. Plaintiffs allege that borosilicate Pyrex has a long history
with consumers. [26] ¶¶ 2–3, 64–66 (noting manufactures have advertised Pyrex to
consumers for over 100 years). Plaintiffs also note Defendants, and Corning before
them, advertised Pyrex as uniquely versatile and able to withstand sudden and
extreme changes in temperature. Id. ¶¶ 64–66 (previous advertisements marketed
Pyrex as suitable from “ice-box to oven” and “oven to ice-box” and that Pyrex could be
used to mix, bake, and serve all in the same dish). Based upon Plaintiffs’ allegations
including the nature of Pyrex’s extensive consumer history, the fact that the Products
continue to be sold under the Pyrex name, are still marketed as “versatile” and “safe,”
and that Defendants fail to note on the Products or in advertisements that the
Products are now made with a less thermal resistant glass, id. ¶¶ 63–71, Plaintiffs
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have sufficiently alleged facts plausibly showing that the Products do not perform as
reasonably expected.
This Court next turns to Defendants’ specific arguments
regarding the various state implied warranty claims.
1. Timeliness of New York and Massachusetts Implied Warranty Claim
(Counts 8 and 13)
Defendants argue that the New York and Massachusetts claims for breach of
implied warranty are untimely. [38] at 20. As this Court explained earlier, under
New York and Massachusetts law, warranty claims must be asserted within four
years after the cause of action accrued. N.Y. U.C.C. § 2–725(1); MASS. GEN. LAWS
ANN. ch. 106 § 2–725(1). Plaintiff Slepian’s and Plaintiff Klein’s implied warranty
claims accrued more than four years ago and are thus time-barred. Accordingly,
Defendants’ motion to dismiss Counts 8 and 13 is granted.
2. Failure to Plead Privity for Plaintiffs Florida, Illinois, and Ohio (Counts 9,
11, and 12)
Defendants next argue that Plaintiff Grau’s, Plaintiff Cashmore’s, and
Plaintiff Schutte’s respective Florida, Illinois, and Ohio implied warranty claims
should be dismissed for lack privity.
[38] at 20–21.
Defendants contend that
Plaintiffs have not and cannot allege privity because they purchased the Products
from various retailers rather than directly from Defendants. Id. Plaintiff Grau,
Plaintiff Cashmore, and Plaintiff Schutte concede they lack privity with Defendants
but counter that their claims should be exempted from this requirement because they
were the intended third-party beneficiaries and because Defendants dealt directly
with consumers. [45] at 14–16.
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Under Illinois law, privity constitutes an essential prerequisite to state a claim
for economic damages based upon a breach of implied contract. Voelker v. Porsche
Cars N. Am., Inc., 353 F.3d 516, 525 (7th Cir. 2003) (affirming the district court’s
dismissal of a consumer’s breach of implied warranty claims for lack of privity with
the manufacturer). An exception to this general rule exists, however, when the
manufacturer and the consumer had a direct relationship, or when the manufacturer
knew the identity, purpose, and requirements of the seller’s customer and delivered
the goods to meet those requirements. Chi. Heights Venture v. Dynamit Nobel of Am.,
Inc., 575 F. Supp. 214, 219 (N.D. Ill. 1983) (citing Frank’s Maint. & Eng’g, Inc., v. C.A.
Roberts Co., 408 N.E.2d 403, 412 (Ill. App. Ct. 1980)).
Here, Plaintiff Cashmore has not sufficiently alleged facts showing a direct
relationship under Illinois law. While Plaintiffs generally alleges Defendants made
representations and advertisements that were directed at consumers, [26] ¶¶ 63–71,
Plaintiff Cashmore has not alleged any information establishing a direct relationship,
[26] ¶¶ 109–12. For example, she has not alleged: any direct communications with
Defendants or their agents prior to purchasing the Products, facts showing that
Defendants took unique steps to create the Product for her needs or remedy the defect
for her needs, or that Defendants were aware that Plaintiff Cashmore was Walmart’s
ultimate customer. See Abco Metals Corp. v. J.W. Imp. Co., Inc., 560 F. Supp. 125,
128 (N.D. Ill. 1982) (outlining the factors that create a direct relationship). Without
more, her implied warranty claim cannot proceed. Sadler v. Pella Corp., 146 F. Supp.
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3d 734, 749 (D.S.C. 2015) (applying Illinois law).
For these reasons, Plaintiff
Cashmore’s Illinois implied warranty claim is dismissed with prejudice.
This Court now turns to Plaintiff Grau’s breach of implied warranty claim.
Florida law also strictly requires privity to sustain a claim of breach of implied
warranty. Garcia v. Kashi Co., 43 F. Supp. 3d 1359, 1388 (S.D. Fla. 2014). The privity
requirement extends to consumer claims even when the manufacturer directly
markets its products to consumers. See id. (dismissing consumer claims for breach
of implied warranty against cereal manufacturers who also marketed and advertised
the cereal products); Hill v. Hoover Co., 899 F. Supp. 2d 1259, 1267 (N.D. Fla. 2012)
(dismissing a consumer’s claims against a manufacturer when she “failed to allege
that she purchased the Steam Vac directly from the Defendants, but rather,
specifically alleged that she purchased the Steam Vac from a third-party retailer”).
Here, Plaintiff Grau alleged that she purchased the Product from Target rather than
Defendants. [26] ¶ 99. Therefore, she fails to allege privity and, by extension, fails
to state a claim for breach of implied warranty. Her claim is, thus, dismissed with
prejudice.
Finally, Ohio law also requires privity of contract to state a claim for breach of
implied warranty. Traxler v. PPG Indus., Inc., 158 F. Supp. 3d 607, 620 (N.D. Ohio
2016). Ohio courts have also declined to recognize an exception to this requirement
for intended beneficiaries of a manufacturer’s agreement with a retailer given the
Ohio Supreme Court’s “unequivocal language” that privity is required to maintain an
implied warranty claim. McKinney v. Bayer Corp., 744 F. Supp. 2d 733, 757–58 (N.D.
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Ohio 2010) (citing Curl v. Volkswagen of Am., Inc., 871 N.E.2d 1141, 1147 (Ohio
2007)). Despite the privity requirement, Plaintiff Schutte pled that she purchased
the Products from Kroger. [26] ¶ 113. This Court, thus, grants with prejudice
Defendants’ motion to dismiss Plaintiff Schutte’s claim for breach of implied
warranty.
Because this Court has dismissed all of Plaintiffs’ Implied Warranty claims,
this Court need not evaluate Defendants’ further arguments that Plaintiffs Slepian’s
and Klein’s claims are defective because they misused their Products, and that
Plaintiff Slepain’s and Plaintiff Schutte’s claims failed to plead notice.
D.
Magnuson-Moss Warranty Act Claims (Count 1)
Defendants argue that where Plaintiffs’ state warranty claims fail, so too do
their Magnuson-Mass Warranty Act (MMWA) claims. [38] at 15–16. This Court
agrees. The Act provides federal jurisdiction for plaintiffs to assert warranty claims
but does not provide substantive rights. See IWOI, LLC v. Monaco Coach Corp., 581
F.Supp.2d 994, 999 (N.D. Ill. 2008). Therefore, if a plaintiff’s state law warranty
claim is insufficient, her MMWA claim must also be dismissed. See, e.g., McKee v.
Gen. Motors, 376 F. Supp. 3d 751, 760 (E.D. Mich. 2019) (“The MMWA lacks
substantive requirements but provides a federal remedy for breach of warranties
under state law. Thus, ‘the applicability of the [MMWA] is directly dependent [sic]
upon a sustainable claim for breach of warranty.’”) (alternation in original) (quoting
Wozniak v. Ford Motor Co., 2:17-cv-12794, 2019 WL 108845, at *3 (E.D. Mich. Jan. 4,
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2019)).
Thus, Plaintiffs MMWA claims rise and fall with their state law warranty
claims.
E.
Plaintiffs’ Common Law Contract Claims (Count 15)
Plaintiffs assert a generalized common law contract claim should this Court
dismiss their UCC-based warranty claims. [26] ¶¶ 352–60. This claim fails as a
matter of law. Whenever a provision of the UCC applies to the parties’ claims, then
the UCC displaces common law claims. Crawford Supply Grp., Inc. v. Bank of Am.,
N.A., 829 F. Supp. 2d 636, 645 (N.D. Ill. 2011) (the UCC displaces the common law
whenever a provision of the UCC governs the dispute); Landtek Grp., Inc., v. N. Am.
Specialty Flooring, Inc., CV 14–1095 (SJF) (AKT), 2016 WL 11264722, at *36
(E.D.N.Y. Aug. 12, 2016) (the UCC displaced common law warranty claims); see also
810 ILCS 5/1–103(b) (if a particular provision of the UCC governs an issue, it will
displace the common law); OHIO REV. CODE § 1301.103(B) (same); MICH. COMP. LAWS
§ 440.1103(2) (same); FLA. STAT. § 671.103 (same); NY UCC § 1-103 (same); MASS.
GEN. LAWS ch. 106 § 1-103 (same). As relevant here, the UCC expressly governs the
sale of goods, JOHN BOURDEAU, ET AL., 67 AM. JUR. 2D SALES § 3 (2d ed. 2019), and,
thus, displaces the common law. Furthermore, Plaintiffs fail to provide any authority
as to why the UCC does not apply to their claims. [45] at 18. For this reason, this
Court dismisses Plaintiffs’ common law contract claim without prejudice.
F.
Plaintiffs’ Consumer Protection Claims
Unlike Plaintiffs’ contract claims, which are based upon Defendants’
representations, Plaintiffs assert claims for violations of various consumer protection
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statutes based upon Defendants’ alleged omission on the Products and in advertising
that the Products are now made from a less heat resistant glass. 3 [26] ¶¶ 364, 372–
374, 387, 395, 408–09, 424, 439, 451, 460; [45] at 6–10. Defendants advance two
arguments arguing that this Court should summarily dismiss Plaintiffs’ consumer
protection claims. [38] at 25–28. This Court finds neither persuasive.
1. Defendants’ Express Disclosure of the Defect
Defendants first contend that Plaintiffs’ consumer protection claims must be
summarily dismissed because Defendants expressly disclosed that the Products may
experience thermal breakage in the Products’ Limited Warranty and user
instructions.
[38] at 25–27.
Even so, Plaintiffs allege that Defendants gave
conflicting instructions and representations that were likely to confuse a reasonable
consumer. [26] ¶ 91; [45] at 2, 5–6. This Court finds Plaintiffs’ allegations sufficient
to state a claim for consumer deception.
For example, in Marty v. Anheuser-Busch Companies, LLC, the court found the
plaintiffs successfully stated a claim under Florida’s consumer protection statute
based in part upon conflicting statements that could plausibly confuse a reasonable
consumer. 43 F. Supp. 3d 1333, 1342 (S.D. Fla. 2014). In that case, the plaintiffs
purchased Beck’s Beer believing it was brewed in Germany. Id. at 1336. Although
Although some of the facts pled in the Complaint allege consumer deception based upon Defendants’
representations as well as omissions, see, e.g., [26] ¶ 372, in their Opposition, Plaintiffs do not respond
to Defendants’ argument that their claims based on affirmative statements had to meet the
requirements under Federal Rule 9(b). [45] at 6–10. Instead they characterize their claims as solely
based upon a theory of fraudulent omission. Id. For this reason, as to the current motions, Plaintiffs
have waived any argument that their consumer protection claims are also based upon Defendants’
affirmative representations.
See Palmer v. Marion Cty., 327 F.3d 588, 597–98 (7th Cir. 2003)
(determining plaintiff abandoned a claim when he failed to raise it in his opposition to summary
judgment).
3
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the beer’s packaging explicitly stated it was brewed in St. Louis, MO and that it was
a “Product of the USA,” the plaintiffs nevertheless argued that consumers were
confused.
Id. at 1340–42. The plaintiffs pointed out that the beer was previously
brewed in Germany and that the defendants’ advertising frequently mentioned the
beer’s German heritage. Id. Thereby, the court found the plaintiffs had plausibly
stated a claim for consumer deception despite the defendants’ express disclosure. Id.
So too in this case, Plaintiffs allege that: Defendants continue to market their
Products under the longstanding Pyrex name; that they fail to expressly state the
Products are now made with a less thermal resistant form of glass; that when they
do address the material change on an FAQ, Defendants fail to explain the defect and
represent generally that soda lime glass provides the same high-quality performance
as borosilicate and that the Products are versatile and dishwasher, refrigerator,
microwave, preheated oven safe. [26] ¶¶ 5–9, 67–70, 90. These allegations are
sufficient to state a claim that a reasonable consumer may be misled into believing
the Products are safer, more versatile, and more resistant to thermal breakage than
they are, even in spite of Defendants’ warning.
2. Plaintiffs’ Failure to Plead Fraud with Particularity
Defendants also argue that all of Plaintiffs’ state consumer fraud claims should
be dismissed for failure to comply with the heightened pleading standard under
Federal Rule of Civil Procedure 9(b). [38] at 27–28. This Court disagrees for several
reasons.
First, contrary to Defendants’ assertion, the various state consumer
protection laws implicated here do not require Plaintiffs to meet the Rule 9(b)
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heightened pleading standard. For example, in Florida, the Deceptive and Unfair
Trade Practices Act “was enacted to provide remedies outside the reach of common
law torts such as fraud, and therefore, the plaintiff need not prove the elements of
fraud to sustain an action under the statute.” Galstaldi v. Sunvest Cmty. USA, LLC,
637 F. Supp. 2d 1045, 1058 (S.D. Fla. 2009) (internal quotation marks omitted)
(quoting Florida v. Tenet Healthcare Corp., 420 F. Supp. 2d 1288, 1310 (S.D. Fla.
2005)). Similarly, Plaintiffs do not need to meet Rule 9(b)’s requirements to state a
claim under the Illinois Consumer Fraud and Deceptive Business Practices Act.
Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Serv., Inc., 536 F.3d
663, 670 (7th Cir. 2008).
Besides, Plaintiffs base their consumer protection claims upon a fraudulent
omission theory. [26] ¶¶ 5, 8, 39, 41, 70; [45] at 6–10. The standard to state a
fraudulent omission claim under Rule 9(b) is more relaxed than the typical fraud
claim. McKee, 376 F. Supp. 3d at 760–61. To plead fraudulent omission, Plaintiffs
must allege details regarding the who, what, when, where, and how. Id. Here,
Plaintiffs allege those details by asserting that Defendants, since switching to soda
lime glass, failed to disclose to consumers, either on the Products or in marketing
campaigns, that the Products were made from an allegedly lower quality glass. [26]
¶¶ 5, 8, 39, 41, 65, 70. These allegations remain sufficient to state a claim for
fraudulent omission.
Defendants also allege various pleading defects as to particular consumer
protection statutes. This Court will now address these arguments in turn.
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3. Timeliness of Plaintiffs’ New York Claims (Counts 16 and 17)
Corelle argues that Plaintiff Slepian’s consumer fraud claims are untimely.
[38] at 29. “Claims brought under New York General Business Law §§ 349 and 350
are subject to a three-year statute of limitations.” Martin Hilti Family Tr., 137 F.
Supp. 3d at 466; NY CPLR § 214(2). The cause of action begins to accrue at the time
Plaintiffs purchased the inherently defective Products. Gould v. Helen of Troy Ltd.,
16 Civ 2033 (GBD), 2017 WL 1319810, at *3 (S.D.N.Y. March 30, 2017). Plaintiff
Slepian purchased the Products in 2013. [26] ¶ 95. Her claims, then, are time-barred
as she purchased her Pyrex product more than three years ago. Thus, this Court
grants Defendants’ motion to dismiss Counts 16 and 17.
4. Failure to Plead the Elements of the Ohio Consumer Sales Practices Act
(Count 22)
Defendants argue that Plaintiff Schutte’s claim under the Ohio Consumer
Sales Practices Act (OCSPA) fails to allege facts showing that Defendants had prior
notice that their specific actions were deceptive or unconscionable. [38] at 33 n.18.
Ohio courts articulated:
To adequately plead prior notice under O.R.C. §
1345.09(B), plaintiff must allege either that a specific rule
or regulation has been promulgated by
the
Ohio Attorney General
under R.C.
1345.05
that
specifically characterizes the challenged practice as unfair
or deceptive, or that an Ohio state court has found the
specific practice either unconscionable or deceptive in a
decision open to public inspection.
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Pattie v. Coach, Inc., 29 F. Supp. 3d 1051, 1055 (N.D. Ohio 2014) (internal
punctuation and quotation marks omitted) (quoting Johnson v. Microsoft Corp., 802
N.E.2d 712, 720 (Ohio Ct. App. 2003)).
To fulfill the notice requirement, Plaintiff Schutte cites a section of Ohio’s
Administrative Code that generally prohibits misleading representations. [26] ¶ 442.
But generic provisions are not enough because Plaintiff Schutte must identify a
substantially similar act or practice which the Ohio Attorney General or an Ohio court
previously declared deceptive. Id. at 1055–56 (citing Marrone v Phillip Morris USA,
Inc., 850 N.E.2d 31, 36 (Ohio 2006)). The generic provision Plaintiff Schutte cites
“does not refer to any particular act or practice” such as a substantially similar
conduct taken within the same industry. Marrone, 850 N.E.2d at 36 (rejecting the
plaintiff’s assertion that a generic rule provided prior notice because permitting a
generic rule to suffice “would allow any previous determination of a deceptive act or
practice to qualify as prior notice for any subsequent alleged deceptive act or
practice”) (emphasis in original). Because Plaintiff Schutte failed to allege Defendant
had prior notice that its actions were deceptive as required under the OCSPA, this
Court dismisses her OCSPA claim.
5. Ohio Deceptive Trade Practices Act (Count 23)
Plaintiff Schutte’s claim under the Ohio Deceptive Trade Practices Act
(ODTPA) also fails. While the Ohio Supreme Court has not addressed the question
of whether consumers have standing to assert claims under the ODTPA, the “vast
majority of federal courts and all lower [Ohio] state courts to address the issue have
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concluded that relief under the DTPA is not available to consumers.” Phillips v.
Philips Morris Companies Inc., 290 F.R.D. 476, 482 (N.D. Ohio 2013). Thus, this
Court finds that Plaintiff Schutte, as a consumer, does not have standing to assert
this claim and dismisses Count 23.
6. Failure to Plead Reliance or Causation for Plaintiffs’ New York, Florida,
Illinois, and Ohio Consumer Fraud Claims (Counts 16–23)
Defendants seek dismissal of Plaintiffs’ New York, Florida, Michigan, Illinois,
and Ohio consumer protection claims because Plaintiffs failed to identify any specific
representation they relied upon when purchasing the Products, thereby leading to
their injury. [38] at 28–29; [6] ¶¶ 92–115. Because this Court already dismissed
Plaintiffs’ New York, Michigan, and Ohio consumer fraud claims on other grounds,
this Court will only consider Plaintiffs’ Florida and Illinois claims.
Defendants argue that Plaintiffs’ claims fail to identify a specific
representation they relied upon to their detriment in purchasing the Products. [38]
at 28–29. Typically, to state this type of claim, a plaintiff must allege the specific
representation the defendant made upon which he or she relied.
Berenguer v.
Warner-Lambert Co., No. 02-05242, 2003 WL 24299241, at *2 (Fla. Cir. Ct. July 31,
2003) (analyzing claims under the Florida Deceptive and Unfair Trade Practices Act);
Oliveira v. Amoco Oil Co., 776 N.E.2d 151, 164 (Ill. 2002) (analyzing claims under the
Illinois Consumer Fraud and Deceptive Business Practices Act).
Yet Defendants misunderstand Plaintiffs’ allegations. For their consumer
protection claims, Plaintiffs state they were harmed by Defendants’ omission rather
than any representation. [26] ¶¶ 5, 8, 39, 41, 70; [45] at 6–10. Plaintiffs further pled
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that had they been “aware of the Defect” [i.e. that the Product was made from soda
lime glass which is more susceptible to shattering], they “would not have purchased
or used Pyrex.” Id. ¶¶ 98, 102, 112, 115, 118. These allegations suffice to state a
claim of consumer deception based upon fraudulent concealment. See, e.g., Pappas v.
Pella Corp., 844 N.E.2d 995, 1004 (Ill. App. Ct. 2006) (reversing the trial court’s
dismissal of claims under the Illinois Consumer Fraud Act when “[i]n, effect,
plaintiffs allege[d] they relied on [the defendant’s] concealment by silence”). In sum,
this Court denies Defendants’ motion to dismiss Plaintiffs’ Florida and Illinois
consumer fraud claims based upon a theory of fraudulent concealment.
7. Failure to Allege Future Harm under the Illinois Uniform Deceptive Trade
Practices Act (Count 21)
Plaintiff Cashmore seeks injunctive relief against Defendants under the
Illinois Uniform Deceptive Trade Practices Act (UDTPA). [26] ¶ 434. The UDTPA is
designed to enjoin trade practices that are deceptive or confusing to consumers. 815
Ill. Comp. Stat. 510/2; see also Popp v. Cash Station, Inc., 613 N.E.2d 1150, 1156 (Ill.
App. Ct. 1992) (“The purpose of the DTPA is the enjoining of trade practices which
confuse or deceive the consumer.”) (internal quotation marks omitted). A claim is
proper under the UDTPA when the plaintiff alleges facts showing a likelihood of
future damage. Aliano v. Louisville Distilling Co., 115 F. Supp. 3d 921, 928 (N.D. Ill.
2015) (citing Robinson v. Toyota Motor Credit Corp., 735 N.E.2d 724, 735 (Ill. App.
Ct. 2000)). Defendants contend that given that Plaintiff Cashmore is now aware the
Products are manufactured with soda lime glass, she is unlikely to succumb to future
harm by purchasing the Products again. [38] at 30. In fact, she even alleges that had
26
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she known of the defect when she purchased the Products, she would have taken a
different course of action. [26] ¶ 430 (alleging that had Plaintiff Cashmore “known of
the serious safety risk and/or the Defect in Pyrex, [she] would not have purchased
Pyrex, or else would have paid substantially less for it”). Therefore, Defendants argue
that she is at no risk of continuing to be fooled by Defendants’ allegedly deceptive
conduct.
This Court finds Defendants’ argument persuasive. See Howard v. Chicago
Transit Auth., 931 N.E.2d 292, 299 (Ill. App. Ct. 2010). Indeed, the UDTPA’s future
harm requirement frequently proves problematic for plaintiffs asserting consumer
claims. Aliano, 115 F.Supp.3d at 928 (noting that the problem in most consumer
actions under the act “is the inability to allege facts indicating the likelihood of
damage in the future”) (internal punctuation omitted) (quoting Howard, 931 N.E.2d
at 299). This Court concludes that Plaintiff Cashmore has failed to adequately plead
a likelihood of future injury. For that reason, this Court dismisses Count 21.
8. Failure to Allege a Violation of Massachusetts Consumer Protection Law
(Count 24)
Plaintiffs allege violations of Mass Gen. Laws ch. 93A based upon the
allegations of Plaintiff Klein. [26] ¶¶ 456–66. To state a clai m sounding in fraud
under Mass Gen. Laws ch. 93A, a Plaintiff must meet the heightened pleading
requirements of Federal Rule of Civil Procedure 9(b). Rick v. Profit Mgmt. Assoc.,
Inc., 241 F. Supp. 3d 215, 225 (D. Mass. 2017). As discussed previously, however,
Plaintiff Klein met this standard as to her theory of fraudulently omission. For this
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reason, this Court denies Defendants’ motion to dismiss Plaintiff Klein’s claim under
Mass Gen. Laws ch. 93A.
G.
Unjust Enrichment (Count 14)
Plaintiffs assert a generalized unjust enrichment claim.
[26] ¶¶ 346–51.
Plaintiffs state they bring this claim in the alternative should their other claims not
be governed by contract law. Id. ¶ 347. To support this claim, Plaintiffs assert
Defendants unjustly received a benefit when Plaintiffs purchased the defective
Products. Id. ¶¶ 348–50. For their part, Defendants argue that some of these claims
are time-barred and that many of these claims are improper for other reasons. [38]
at 21–24.
In order to analyze this claim, this Court looks to Illinois choice-of-law
principles to determine the applicable substantive law to Plaintiffs’ claims. Siegel v.
Shell Oil Co., 256 F.R.D. 580, 585 (N.D. Ill. 2008), aff'd, 612 F.3d 932 (7th Cir. 2010).
Illinois uses the “most significant relationship test.” Id. Under this test, the location
of the injury controls unless Illinois has a more significant relationship. Adkins v.
Nestle Purina PetCare Co., 973 F. Supp. 2d 905, 914 (N.D. Ill. 2013). In this case, the
state where the consumer lives, purchased the products, and was injured has the
more significant relationship to the claims and govern Plaintiffs’ claims. Id. Thus,
this Court will evaluate each Plaintiff’s claims based upon where she suffered an
injury.
28
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1. Plaintiffs’ Claims are Duplicative of Other Claims at Law
Defendants argue that Plaintiffs Slepian’s, Grau’s, Cashmore’s, and Klein’s
unjust enrichment claims should be dismissed as improperly duplicative of their
contract and consumer protection claims.
[38] at 22–23.
This Court evaluates
Plaintiffs claims in turn.
As to Plaintiff Slepian, under New York law, claims for unjust enrichment may
not proceed as a “catchall cause of action.” Corsello v. Verizon N. Y., Inc., 967 N.E.2d
1177, 1185 (N.Y. 2012). Instead the claim is “available only in unusual situations
when, though the defendant has not breached a contract nor committed a recognized
tort, circumstances create an equitable obligation running from the defendant to the
plaintiff.” Id. Although Plaintiff Slepian asserts that her claims are not duplicative,
[26] ¶ 347, this argument rings hollow, Buonasera v. Honest Co., Inc., 208 F. Supp.
3d 555, 568 (S.D.N.Y. 2016). She asserts not only contract claims but also tort
consumer protection claims, both of which rely upon the same underlying facts as her
unjust enrichment claim. Id. Furthermore, Plaintiff Slepian failed to plead any facts
supporting a theory that a quasi-contractual relationship existed between her and
Defendants. See [26] ¶¶ 346–51. Instead she nakedly asserts that this claim is
presented in the alternative. Id. ¶ 347. Thus, even viewing the Complaint in the
light most favorable to her, Plaintiff Slepian’s unjust enrichment claim is duplicative.
Accordingly, this Court grants Defendants’ motion to dismiss Plaintiff Slepian’s
unjust enrichment claim with prejudice.
29
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Relatedly, under Florida law, unjust enrichment, as an equitable remedy, is
available only when the plaintiff does not have a remedy at law available. Am. Honda
Motor Co., Inc. v. Motorcycle Info. Network, Inc., 390 F.Supp.2d 1170, 1178 (M.D. Fla.
2005) (to state a claim for unjust enrichment “a party must allege that no adequate
legal remedy exists”).
And although unjust enrichment may be pled in the
alternative, “where the unjust enrichment claim relies upon the same factual
predicates as plaintiff’s legal causes of action, it is not a true alternative theory of
relief,” and must be dismissed. Koski v. Carrier Corp., 347 F.Supp.3d 1185, 1196
(S.D. Fla. 2017) (quoting Licul v. Volkswagen Grp. of Am., Inc., No. 13–61686–CIV,
2013 WL 6328734, at *7 (S.D. Fla. Dec. 5, 2013)).
Here, Plaintiff Grau’s unjust enrichment claims rest upon the same factual
allegations as her contract and consumer deception claims, namely that Defendants
fraudulently marketed the Products as versatile and safe without disclosing the
Products were made from inferior soda lime glass, see [26] ¶¶ 99–102, 346–350, and
that she paid more than she otherwise would have if Defendants had not concealed
that the Products are now made from soda lime glass, id. ¶¶ 102, 349–50. Because
her unjust enrichment claim relies upon the same factual predicate as her legal
causes of action, her claim must be dismissed. Koski, 347 F. Supp. 3d at 1196
(dismissing consumer claims for unjust enrichment under Florida law when the
plaintiffs alleged warranty claims and claims under the FDUTPA). Therefore, this
Court grants with prejudice Defendants’ motion to dismiss Plaintiff Grau’s unjust
enrichment claim.
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Turning to Plaintiff Klein’s claims, Massachusetts law likewise does not permit
claims for unjust enrichment when Plaintiffs have an adequate remedy at law.
Santagate v. Tower, 833 N.E.2d 171, 176 (Mass. App. Ct. 2005). Indeed, under
Massachusetts law, unjust enrichment “serves only as an equitable stopgap for
occasional inadequacies in contractual remedies at law.” O’Hara v. Diageo-Guinness,
USA, Inc., 306 F. Supp. 3d 441, 466 (D. Mass. 2018) (quoting Shaulis v. Nordstrom,
Inc., 865 F.3d 1, 16 (1st Cir. 2017)).
As relevant here, Massachusetts courts consider claims for violations of
Massachusetts consumer protection law an adequate remedy at law. O’Hara, 306
F.Supp.3d at 466. Furthermore, the fact that Plaintiffs may not prevail on their
contract claims does not mean that they do not have an adequate remedy at law.
Shaulis, 865 F.3d at 16 (“It is the availability of a remedy at law, not the viability of
that remedy, that prohibits a claim for unjust enrichment.”). For these reasons, this
Court grants with prejudice Defendants’ motion to dismiss Plaintiff Klein’s unjust
enrichment claim.
Finally, this Court examines Plaintiff Cashmore’s unjust enrichment claim
under Illinois law. Unlike claims under New York, Florida, and Massachusetts law,
under Illinois law, a claim for unjust enrichment may be asserted alongside other
claims in tort, contract, or statute. Muir v. Nature’s Bounty, Inc., No. 15 C 9835, 2017
WL 4310650, at *6 (N.D. Ill. Sept. 28, 2017) (citing Cleary v. Phillip Morris, 656 F.3d
511, 517 (7th Cir. 2011)). In such situations, the claim for unjust enrichment will
naturally stand or fall with the related claim(s). Id. In this case, this Court declined
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to dismiss Plaintiff Cashmore’s Illinois Consumer Fraud Act claim. Accordingly, just
as her consumer fraud claim survived dismissal, so does Plaintiff Cashmore’s unjust
enrichment claim.
2. Failure to Establish a Direct Relationship with Defendants under Ohio Law
Defendants seek dismissal of Plaintiff Schutte’s Ohio unjust enrichment claim
because she has not pled facts showing that she directly purchased Pyrex from
Corelle. [38] at 24. Under Ohio law, unjust enrichment is not intended to compensate
the plaintiff for damages lost, but rather to restore the benefit she conferred on the
defendant. Johnson v. Microsoft Corp., 834 N.E.2d 791, 799 (Ohio 2005).
In this case, Plaintiff Schutte alleges she purchased “several new Pyrex bowls
from a Kroger store in Ohio.” [26] ¶ 113. By contrast, she does not allege that she
ever purchased Pyrex directly from Defendants. See id. ¶¶ 113–15. But the “Ohio
Supreme Court has held that in order for a plaintiff to confer a benefit on a defendant,
an economic transaction must exist between the parties.” Caterpillar Fin. Servs.
Corp. v. Harold Tatman & Son’s Enter., Inc., 50 N.E.3d 955, 967 (Ohio Ct. App. 2015).
Ohio courts, therefore, dismiss unjust enrichment claims when the plaintiff did not
directly purchase the goods or services from the defendant. Id. Here, Plaintiff
Schutte has failed to allege any facts suggesting that her purchase conferred a benefit
on Defendants. [26] ¶¶ 113–15. For that reason, this Court grants Defendants
motion to dismiss Plaintiff Schutte’s unjust enrichment claim without prejudice.
Plaintiff Schutte may reassert this claim if she can allege facts showing that
Defendants financially profited from this transaction.
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In conclusion, this Court grants Defendants’ motion to dismiss Count 14 with
prejudice except as it relates to Plaintiff Cashmore’s claim.
H.
Defendants’ Motion to Strike the Class Allegations from the Compliant
Defendants finally request this Court strike Plaintiffs’ nationwide class
allegations asserting MMWA claims and common law contract claims (Counts 1 and
15). [38] at 30–33. Plaintiffs also assert nationwide claim for unjust enrichment
(Count 14). [26] ¶¶ 346–51. Defendants argue these claims are fatally deficient
because the difference in each state’s law makes the claims unsuitable for class
treatment. [38] at 30–33.
To begin, this Court notes that district courts enjoy “’broad discretion to
determine whether certification of a class-action lawsuit is appropriate.’” Arreola v.
Godinez, 546 F.3d 788, 794 (7th Cir. 2008) (quoting Chavez v. Ill. State Police, 251
F.3d 849, 859 (7th Cir. 2001)). Courts may strike class allegations at the pleading
stage when the “dispute is not factual and discovery is unnecessary to resolve it.”
Miles v. Am. Honda Motor, Co., Inc., Case No. 17 C 4423, 2017 WL 4742193 at *5
(N.D. Ill. Oct. 19, 2017) (citing Cholly v. Uptain Grp., Inc., 2015 WL 9315557, at *3
(N.D. Ill. Dec. 22, 2015)).
Here, Corelle identifies substantial differences among state law that cannot be
cured by fact discovery because certification requires extensive analysis of state law
variations, not the application of disputed facts. [38] at 30–33. Corelle argues that
variations in notice, privity, reliance, and statutes of limitations for the warranty
laws of the six states where the seven named Plaintiffs reside necessitate striking
33
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those allegations from the complaint. Id. at 31 n. 16.
Defendants also identify
variations in Plaintiffs’ common law breach of warranty and contract claims. Id.
Defendants concerns are merited. As multiple courts in the Seventh Circuit
have commented, district courts remain reluctant to manage nationwide classes for
these types of claims. In re Aqua Dots Prod. Liab. Litig., 270 F.R.D. 377, 386 (N.D.
Ill. 2010) (“[T]he law of unjust enrichment varies too much from state to state to be
amenable to national or even to multistate class treatment.”); Muir, 2017 WL
4310650, at *8 (citing In re Sears, Roebuck & Co. Tools Mktg. & Sales Practices Litig.,
Nos. 05 C 4742 & 05 C 2623, 2006 WL 3754823, at *1 n.3 (N.D. Ill. Dec. 18, 2006))
(same); In re Gen. Motors Corp. Dex-Cool Prod. Liab. Litig., 241 F.R.D. 305, 314–15
(S.D. Ill. 2007) (denying a motion for class certification on an express warranty claim
because the court would have to apply “the significantly-differing laws” from state to
state); In re McDonald’s French Fries Litig., 257 F.R.D. 669, 674 (N.D. Ill. 2009)
(same); Szabo v. Bridgeport Mach., Inc., 249 F.3d 672, 674 (7th Cir. 2001) (explaining
that nationwide classes in breach-of-warranty-actions “pose serious problems about
choice of law” and “the manageability of the suit”).
In this case, the variance between state law on these issues means that
Plaintiffs’ nationwide claims present individual questions of law and fact. Because
individual questions will predominate, the proposed nationwide classes do not and
cannot satisfy Rule 23(b)(3)’s predominance and manageability requirements. In re
Yasmin and Yaz (Drospirenone) Mktg., 275 F.R.D. 270, 274 (S.D. Ill. 2011) (striking
unmanageable class allegations at the pleadings stage).
34
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Case: 1:18-cv-04198 Document #: 72 Filed: 09/30/19 Page 35 of 36 PageID #:772
appropriate to decide at the pleading stage because the difficulty in Plaintiffs’ claims
stem from the variance in the substantive law, which discovery cannot cure. See In
re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1015 (7th Cir. 2002) (“No class action
is proper unless all litigants are governed by the same legal rules.”).
In brief,
Plaintiffs nationwide class claims (Counts 1, 14, and 15) are inherently defective
under Rule 23(b)(3), so this Court grants Defendants’ motion to strike those
allegations from the record.
IV.
Conclusion
Defendants’ motion to dismiss and strike class allegations from the complaint,
Case No. 1:18-cv-4152 (No. 37); Case No. 1:18-cv-4198 (No. 43), is granted in part and
denied in part. This Court grants Defendants’ motion to dismiss Plaintiffs’ breach of
express warranty claims except for Plaintiff Cashmore’s Illinois claim. This Court
grants Defendants’ motion to dismiss Plaintiffs’ breach of implied warranty claims.
This Court grants Defendants’ motion to dismiss Plaintiffs’ claim for breach of
warranties under the Magnuson-Moss Warranty Act except for Plaintiff Cashmore’s
claim for breach of express warranty. This Court grants Defendants’ motion to
dismiss Plaintiffs’ breach of contract, or, alternatively, breach of common law
warranty claim. This Court grants Defendants’ motion to dismiss Plaintiffs’ claims
for violations of N.Y. Gen. Bus. Law §§ 349 and 350. This Court denies Defendants’
motion to dismiss Plaintiff Grau’s claim for violation of the Florida Deceptive and
Unfair Trade Practices Act.
This Court grants Defendants’ motion to dismiss
Plaintiff Simon’s claim for violation of Michigan’s Consumer Protection Act. This
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Case: 1:18-cv-04198 Document #: 72 Filed: 09/30/19 Page 36 of 36 PageID #:772
Curt denies Defendants’ motion to dismiss Plaintiff Cashmore’s claim for violation of
Illinois’s Consumer Fraud and Deceptive Trade Practices Act. This Court grants
Defendants’ motion to dismiss Plaintiff Cashmore’s claim for violation of Illinois’s
Uniform Deceptive Trade Practices Act. This Court grants Defendants’ motion to
dismiss Plaintiff Schutte’s claims under Ohio’s Consumer Sales Practices Act and
Deceptive Trade Practices Act. This Court denies Defendants’ motion to dismiss
Plaintiff Klein’s claim for violation of Mass. Gen. Laws ch. 93A. Finally, this Court
grants Defendants’ motion to strike the nationwide class allegations from the
complaint.
This Court sets a case management conference for Wednesday, October 9, 2019
at 10:15 a.m. in Courtroom 1203, at which point the parties shall be prepared to set
all case management dates.
Dated: September 30, 2019
Entered:
____________________________________
John Robert Blakey
United States District Judge
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