Jones et al v. Apple, Inc.
Filing
46
ORDER, GRANTING 22 Motion to Dismiss Plaintiffs' First Amended Complaint and DENYING as moot Defendant's 24 Motion Request For Judicial Notice. The case is DISMISSED. Signed by Judge Nancy J. Rosenstengel on 08/22/2016. (bak)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PATRICK JONES and DIANE JONES,
Plaintiffs,
vs.
APPLE, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
Case No. 15-CV-249-NJR-SCW
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Pending before the Court is Defendant Apple, Inc.’s Motion to Dismiss Plaintiffs’
First Amended Complaint (Docs. 22 and 23) and Request for Judicial Notice (Doc. 24).
For the reasons set forth below, the Court grants the Motion to Dismiss and denies as
moot the Request for Judicial Notice.
FACTUAL & PROCEDURAL BACKGROUND
Plaintiffs Patrick Jones and Diane Jones (“Plaintiffs”), on behalf of themselves and
a class of similarly situated consumers, assert breach of warranty claims against
Defendant Apple, Inc. (“Apple”) related to a defect in the Apple iPhone 4S that caused
its network indicator to inaccurately reflect that it was capable of operating as a 4G
device (Doc. 18, p. 2). The First Amended Complaint alleges that this 4G status icon
appeared on iPhone 4S devices that were connected to AT&T’s HSPA network (Id.).
Plaintiffs allege that the iPhone 4S is defective because it lacks materials (including a
4G-capable broadband chip) and workmanship essential to the proper use described in
Page 1 of 10
the User Guide (Doc. 18, p. 7). Plaintiffs assert claims for breach of express warranty
under the Illinois Uniform Commercial Code (“UCC”) and the Magnuson-Moss
Warranty Act (“MMWA”) (Doc. 18, p. 14-16).
According
to
Plaintiffs’
First
Amended
Complaint,
the
International
Telecommunications Union is a specialized agency of the United Nations that
coordinates the shared global use of the radio spectrum and sets international cellular
and radio standards and exclusively creates and propagates the standards for the
generation designation of mobile devices, including the generations referred to and
marketed as “3G” and “4G” technologies (Doc. 18, p. 5). Plaintiffs allege that “the higher
the G designation, the faster the transmission speed” (Doc. 18, p. 1). In 2008, the Radio
communications sector of the International Telecommunication Union (“ITU-R”) issued
the standard for 4G designation, known as IMT-Advanced (Doc. 18, p. 5). Plaintiffs
allege that the IMT-Advanced standard for 4G designation is only theoretical to date in
the United States, and “[n]o mobile device or cellular network available to consumers in
this country has met the IMT-Advanced standard.” (Id.). On December 6, 2010, the
ITU-R issued a press release stating that some “evolved 3G technologies” could also be
recognized as 4G in certain circumstances, even though they did not satisfy the
IMT-Advanced 4G standard:
Following a detailed evaluation against stringent technical and operational
criteria,
ITU
has
determined
that
“LTE-Advanced”
and
“WirelessMAN-Advanced” should be accorded the official designation of
IMT-Advanced. As the most advanced technologies currently defined for
global wireless mobile broadband communications, IMT-Advanced is
considered as “4G”, although it is recognized that this term, while
undefined, may also be applied to the forerunners of these technologies,
LTE and WiMax, and to other evolved 3G technologies providing a
Page 2 of 10
substantial level of improvement in performance and capabilities with
respect to the initial third generation systems now deployed.
(Id., p. 6).
In July 2013, Plaintiffs purchased their iPhone 4Ss at a store in Collinsville, Illinois
(Doc. 18, p. 4). Apple first released the iPhone 4S on October 14, 2011 (Doc. 18, p. 1).
Plaintiffs allege that when the iPhone 4S was released, Apple represented that the
iPhone 4S was a 3G device and the Apple User Guide indicated that the 3G network was
the most advanced cellular network over which the iPhone 4S could connect (Id.). On
March 7, 2012, Apple updated its iPhone software and published a new User Guide
(Doc. 18, p. 2). Plaintiffs allege that this new User Guide represents that the iPhone 4S is a
4G device because the User Guide states the following:
[The status icon] 4G . . . shows . . . that your carrier’s 4G UMTS (GSM)
network is available, and iPhone can connect to the Internet over that
network. (iPhone 4S only. Not available in all areas.).
(Id.). Plaintiffs allege that the iPhone 4S is not a 4G device according to the standards set
forth by the International Telecommunications Union, or by any standard (Id.).
On March 6, 2015, Plaintiffs wrote a letter to Apple’s Warranty Department
stating that “their iPhone 4S did ‘not operate as a 4G mobile device’ for a number of
reasons and requested that Apple either ‘repair the iPhone 4S so that it functions as a 4G
phone or provide a refund [.]’” (Doc. 18, p. 10; Doc. 18-2). Plaintiffs noted in the letter
that they were writing on behalf of a class of similarly situated individuals in Illinois
(Id.). On March 17, 2015, Apple Customer Care responded in writing stating “[w]e
understand you have a technical problem with your iPhone,” but “Apple does not
currently provide technical support through written correspondence.” (Doc. 18, p. 10).
Page 3 of 10
Apple then advised Plaintiffs to consider various other options for obtaining service and
support, which included contacting an 800 number for AppleCare iPhone Technical
Support (Id.).
On August 22, 2015, Plaintiff Patrick Jones called the 800 number and complained
about his iPhone 4S’s failure to operate as a 4G device (Id.). The Apple representative
who answered the 800 call told Mr. Jones to remove certain malware from his iPhone 4S
(Id., p. 11).
On March 6, 2015, the same day that Plaintiffs sent a letter to Apple’s Warranty
Department, Plaintiffs filed suit in this district court. Plaintiffs’ original complaint
asserted claims of consumer fraud, common law fraudulent omission, and unjust
enrichment (Doc. 1). The case was originally assigned to Judge J. Phil Gilbert. On March
10, 2015, the case was reassigned to the undersigned. On August 27, 2015, Plaintiffs filed
a First Amended Complaint, dropping their fraud claims and asserting claims for breach
of express warranty under the UCC (Count I) and the MMWA (Count II).
On September 28, 2015, Apple filed a Motion to Dismiss Plaintiffs’ First Amended
Complaint (Docs. 22 & 23) and a Request for Judicial Notice (Doc. 24). The motions have
been fully briefed and are ripe for ruling.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion, a complaint must “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). While a
complaint need not include detailed factual allegations, there “must be enough to raise a
right to relief above the speculative level.” Id. at 555. The plaintiff must “plead [] factual
Page 4 of 10
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 885 (7th Cir.
2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)). “In reviewing the sufficiency of a
complaint under the plausibility standard, [a court must] accept the well-pleaded facts
in the complaint as true, but [it] ‘need not accept as true legal conclusions, or threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements.’”
Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013) (quoting Brooks v. Ross, 578
F.3d 574, 581 (7th Cir. 2009)). When ruling on a motion to dismiss, a federal court may
consider documents attached to the pleadings without converting the motion to dismiss
into a motion for summary judgment, as long as the documents are referred to in the
complaint and central to the plaintiff’s claims. See Adams v. City of Indianapolis, 742 F.3d
720, 729 (7th Cir. 2014); FED. R. CIV. P. 10(c).
ANALYSIS
The first issue the Court will take up is pre-suit notice. Apple argues that
Plaintiffs’ warranty claims must be dismissed because Plaintiffs did not provide Apple
with requisite notice of the alleged breaches before filing their original complaint.
The Uniform Commercial Code, as adopted by Illinois, requires that a plaintiff
provide the defendant with notice of the breach of warranty “within a reasonable time
after [the plaintiff] discovers or should have discovered any breach” or else the plaintiff
is “barred from any remedy.” 810 ILCS 5/2-607(3)(a). Courts have applied this provision
to require that a plaintiff give the defendant pre-suit notice before asserting a breach of
warranty claim in court. In re Rust-Oleum Restore Marketing, Sales Practices and Products
Page 5 of 10
Liability Litigation, No. 15 C 1364, 2016 WL 74671, at *18 (N.D. Ill. Jan. 7, 2016) (citing
Connick v. Suzuki Motor Corp., 675 N.E.2d 584, 589 (Ill. 1996)). Similarly, the MMWA
provides that the defendant must be given “a reasonable opportunity to cure.” 15 U.S.C.
§ 2310(2). Courts generally incorporate the relevant state law requirements on pre-suit
notice for MMWA claims. See Perona v. Volkswagen of Am., Inc., 684 N.E.2d 859, 864 (1997);
see also Bietsch v. Sergeant’s Pet Care Products, Inc., No. 15 C 5432, 2016 WL 1011512, at *7
(N.D. Ill. March 15, 2016).
The pre-suit notice requirement is supported by a number of justifications: to
protect a seller’s ability to investigate a breach and gather evidence, to allow the seller to
correct the defect or minimize damages, to allow the seller to prepare for litigation, to
prevent stale claims, and to encourage pre-suit settlement negotiations. See In re
McDonald’s French Fries Litigation, 503 F. Supp. 2d 953, 956 (N.D. Ill. 2007); see also Ibarrola
v. Kind, LLC, 83 F. Supp. 3d 751, 760 (N.D. Ill. 2015); Whitwell v. Wal-Mart Stores, Inc., Civil
No. 09-513-GPM, 2009 WL 4894575, at *4 (S.D. Ill. Dec. 11, 2009); Baldwin v. Star Scientific,
Inc., No. 14 C 588, 2016 WL 397290, at *10 (N.D. Ill. Feb. 2, 2016). “Pre-suit notice is an
essential element of a breach of warranty claim, and the absence of such notice results in
dismissal.” Hedges v. Earth, No. 14 C 9858, 2015 WL 1843029, at *1 (N.D. Ill. Apr. 21, 2015)
(citing Whitwell, 2009 WL 4894575, at *4-6).
Plaintiffs allege that they notified Apple of the defect in the iPhone 4S on March 6,
2015, when they wrote a letter to Apple’s Warranty Department. Plaintiffs filed suit that
same day. Apple argues that, because this letter was sent on the same day that the
lawsuit was filed, the letter cannot serve as pre-suit notice of the breach of warranty
Page 6 of 10
claims. Plaintiffs argue in response that they delayed having the complaint served upon
Apple until June 19, 2015, and thus Apple had over three months in which to try to
resolve Plaintiffs’ claims short of litigation. Thus, Plaintiffs argue that they satisfied the
purpose of the pre-suit notice requirement.
Plaintiffs do not cite to any precedent, however, that directly supports their
proposition that notice on the same day of filing the complaint--but prior to service of
such complaint on defendant--is sufficient pre-suit notice. Instead, case law states that
“[Section 2-607(3)(a)] requires a plaintiff to notify the defendant of the claimed
deficiency in its product prior to filing suit.” Anthony v. Country Life Manuf., LLC, 70 F.
App’x 379, 384 (7th Cir. 2003) (emphasis added) (citing Connick, 675 N.E.2d at 590). The
notice must issue prior to filing suit; the requirement cannot be satisfied after litigation
has already begun. The notice provided in this case did not serve the purpose of
encouraging pre-suit settlement negotiations because the lawsuit began on the same day
that Plaintiffs sent notice to Apple. Thus, the Court does not find that Plaintiffs satisfied
the pre-suit notice requirement.1 See Adkins v. Apple, Inc., 147 F. Supp. 3d 913, 920 (N.D
Cal. 2014) (the court found the letter to defendant Apple did not constitute pre-suit
notice because “it was filed contemporaneously with the plaintiffs’ original complaint.”).
1
Although this issue was not raised by Plaintiffs in their response brief, the Court notes that Plaintiffs sent
the letter to Apple five months before Plaintiffs filed their First Amended Complaint, which added breach
of warranty claims for the first time. At least two other judges have considered this scenario and have
found that the pre-suit notice requirement was not satisfied. See, e.g., Adkins, 147 F. Supp. 3d at 920-921; see
also Donohue v. Apple, Inc., 871 F. Supp. 2d 913, 929 (N.D. Cal. 2012). These judges reasoned that the
plaintiffs had not indicated that their warranty claims were based on facts discovered after filing suit and
thus allowing the plaintiffs to assert warranty claims without first giving the defendants notice would
“invite gamesmanship by plaintiffs who know they want to assert a warranty claim but want to avoid
giving defendant notice before filing suit.” See Donohue, 871 F. Supp. 2d at 929. The Court agrees with this
line of reasoning. Here, Plaintiffs have not indicated that their warranty claims are based on facts
discovered after they first filed suit. Further, finding sufficient pre-suit notice in this situation would invite
improper gamesmanship.
Page 7 of 10
Plaintiffs further argue that they should be excused from the pre-suit notice
requirement because Apple had actual knowledge of the defect. Actual knowledge is a
commonly recognized exception to the pre-suit notice requirement. See Connick, 675
N.E.2d at 589 (“Direct notice is not required when . . . the seller has actual knowledge of
the defect of the particular product . . . .”). Plaintiffs argue that Apple had actual
knowledge that every iPhone 4S suffered from the same defect (i.e. lacked the ability to
operate as 4G under ITU standards or any standard), and thus Apple must have known
that the specific iPhone 4Ss sold to Plaintiffs also had the defect. Apple argues that,
although Apple knew that the iPhone 4S lacked the ability to operate as a 4G device,
Apple was entirely unaware of Plaintiffs’ claim that this constituted a breach of warranty.
Instead, Apple argues that the iPhone 4S performed as described in the User Guide by
displaying a 4G status icon when the 4G UMTS network was available and the iPhone 4S
could connect to the Internet over that network.
The Illinois Supreme Court in Connick explained the actual knowledge exception
as follows: “The notice of the breach is not of the facts, which the seller presumably
knows quite well, if not better than, the buyer, but of buyer’s claim that they constitute a
breach.” Connick, 675 N.E.2d at 590 (quoting Am. Mfg. Co. v. United States Shipping Bd.
Emergency Fleet Corp., 7 F.2d 565, 566 (2d. Cir. 1925)) (internal quotation marks omitted).
“Even if a manufacturer is aware of problems with a particular product line, the notice
requirement of Section 2-607 is satisfied only where the manufacturer is somehow
apprised of the trouble with the particular product purchased by a particular buyer.”
Connick, 675 N.E.2d at 590.
Page 8 of 10
Plaintiffs have pleaded that Apple had “actual knowledge that the iPhone 4S is
not a 4G device.” (Doc. 18, p. 8). But Plaintiffs have not pleaded that Apple had actual
knowledge that Plaintiffs believed that the inability of the iPhone 4S to operate as a 4G
phone under ITU standards or any standard constituted a breach of warranty. As stated
above, the notice of the breach required is not of the facts, but of “the buyer’s claim that
they constitute a breach.” Connick, 675 N.E.2d at 590. Nothing in the User Guide’s
description of the 4G status icon--as alleged in the First Amended Complaint--makes
any reference to ITU standards, nor does it make any reference to transmitting at 4G
speeds.2 Thus, Plaintiffs have not alleged sufficient facts to suggest that Apple had
actual knowledge of the claimed breach of warranty.
Plaintiffs have failed to comply with the pre-suit notice requirement, so the
breach of warranty claims will be dismissed with prejudice. See Ibarrola, 83 F. Supp. 3d at
761 (dismissing breach of warranty claim with prejudice for failing to provide pre-suit
notice); see also Miller v. Hypoguard USA, Inc., No. 05-CV-0186-DRH, 2005 WL 3481542, at
*2 (S.D. Ill. Dec. 20, 2005) (dismissing breach of warranty claim with prejudice for failing
to provide pre-suit notice). Because the Court finds that Plaintiffs’ failure to give pre-suit
notice warrants dismissal of Plaintiffs’ warranty claims under Illinois and federal law,
the Court need not address the question of whether the User Guide can give rise to
warranty obligations or whether Plaintiffs’ allegations state warranty claims under the
Illinois Uniform Commercial Code and Magnuson-Moss Warranty Act.
2
Instead, the User Guide merely states that the 4G UMTS (GSM) network is available, and the iPhone 4S
can connect to the Internet over that network (Doc. 18, p. 2).
Page 9 of 10
CONCLUSION
For the reasons explained above, Defendant Apple, Inc.’s Motion to Dismiss (Doc.
22) is GRANTED. In light of this, Apple’s Request for Judicial Notice (Doc. 24) is
DENIED as moot. The case is DISMISSED with prejudice.
IT IS SO ORDERED.
DATED: August 22, 2016
s/ Nancy J. Rosenstengel__________
NANCY J. ROSENSTENGEL
United States District Judge
Page 10 of 10
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?