ARMSTRONG v. DEERE & COMPANY

Filing 33

ORDER - 24 Motion to Dismiss for Failure to State a Claim is granted in part and denied in part. Deere's motion to dismiss Count I, the IDCSA claim is granted. Deere's motion to dismiss Count Two is granted. Deere's motion to di smiss Count Seven is granted. The Court grants Deere's motion to dismiss Counts Eight and Nine, Armstrong's common law fraud and fraudulent misrepresentation claims. Deere's Motion to dismiss Count Twelve is granted. The Court gran ts Deere's Motion to dismiss Count Fourteen. The Court denies Deere's motion to dismiss Count Fifteen. For the reasons stated above, the Court GRANTS in part and DENIES in part Defendant Deere & Company's Motion to Dismiss. (Fi ling No. 24.) The Court finds that the Amended Complaint fails to state a claim for breach of the Indiana Deceptive Consumer Sales Act; breach of Illinois Consumer Fraud and Deceptive Trade Practices Act; constructive fraud; common law fraud; fraudulent concealment; fraudulent misrepresentation; and negligent misrepresentation, and these claims are dismissed with prejudice. The Court, however, concludes that Armstrong has properly pled a state law claim for Count Fifteen-unjust enrichment and this claim survives the initial hurdle of a motion to dismiss. See order for details. Signed by Judge Tanya Walton Pratt on 9/20/2017. (MEJ)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CRAIG ARMSTRONG on behalf of himself
and all others similarly situated,
Plaintiff,
v.
DEERE & COMPANY,
Defendant.

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Case No. 1:16-cv-00844-TWP-MPB

ORDER ON MOTION TO DISMISS
This matter is before the Court on a Motion to Dismiss filed by Defendant Deere &
Company (“Deere”), pursuant to Federal Rule of Civil Procedure 12(b)(6). (Filing No. 24.) On
August 15, 2016, Craig Armstrong, on behalf of himself and all other similarly situated consumers
(“Armstrong”), filed an Amended Complaint against Deere, asserting fifteen tort- and contractbased claims relating to misrepresentations and defective design of a John Deere seed planter that
he purchased in 2014. (Filing No. 21.) For reasons set forth below, the Motion to Dismiss is
granted in part and denied in part.
I.

BACKGROUND

The following facts are not necessarily objectively true, but as required when reviewing a
motion to dismiss, the Court accepts as true all well-pleaded facts alleged in the Amended
Complaint, and draws all possible inferences in Armstrong’s favor. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as
true all of the factual allegations contained in the complaint.”).
Armstrong is a farmer and resident of Indiana. In 2014, he purchased a new John Deere
1770NT seed planter (“the Planter”) from an authorized Deere dealer in Greenfield, Indiana. The

benefit of the Planter, as well as other models of Deere planters is that the machines plant seeds in
the soil and distribute liquid fertilizer at the time the seeds are deposited in the soil. Throughout
the years, Armstrong used other models of Deere planters without any substantial problems. In
2014, however, Deere changed the design of its planters and created the Planter at issue. Similar
to prior models, the Planter is constructed with hoses that connects the fertilizer nozzles to the
fertilizer reservoir. The hoses are used to move liquid fertilizer across the Planter in order to
distribute the fertilizer to the crops. Unlike prior models, however, the Planter was equipped with
hoses of various, rather than equal, lengths.
Deere did not notify customers of this change in design. On April 20, 2014, after Armstrong
planted approximately 2,740 acres of corn crops, he discovered that the Planter failed to evenly
fertilize the crop. He informed his local authorized Deere dealer that the Planter contained a defect.
The dealer examined the Planter and informed Armstrong that the Planter failed to evenly
distribute fertilizer due to the varying lengths of the hoses. The dealer, however, did not offer to
compensate Armstrong or fix the distribution problem. The net result of the defect was uneven
fertilizer distribution, uneven emergence and growth of crops, and, ultimately, decreased overall
crop yield and profits.
On August 15, 2016, Armstrong filed an Amended Complaint against Deere, alleging the
Planter does not conform to its express representation. (Filing No. 21.) The Amended Complaint
is brought on his own behalf, and on behalf of a proposed class consisting of all person or entities
domiciled or residing in the United States who purchased or leased the year 2014 planter
manufactured by Deere. Armstrong asserts, prior to purchasing the Planter, he reviewed and relied
on two brochures published by Deere. The first brochure is Deere’s December 2008 Planting
Equipment product brochure, which marketed Deere’s seed planters as “the only planter on the

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market that can offer even emergence, correct population, uniform spacing, and speed to get the
most production within the optimum window.” Id. at 4 (emphasis added). The second brochure is
Deere’s September 2010 Planting Equipment product brochure, which promised its “single-piston,
variable-stroke pump uniformly applies liquid fertilizer.” Id. at 5 (emphasis added). The Amended
Complaint asserts fifteen tort- and contract- based counts, specifically:
Count One-breach of consumer and market protection statutes for all fifty states,
including Indiana Code § 24-5-0.5-1 et seq.;
Count Two-breach of Illinois Consumer Fraud and Deceptive Trade Practices Act
(“ICFA”);
Count Three-breach of express warranty;
Count Four-breach of implied warranty of merchantability;
Count Five-revocation of acceptance;
Count Six-tortious interference with business relationships;
Count Seven-constructive fraud;
Count Eight-common law fraud;
Count Nine-fraudulent misrepresentation;
Count Ten-breach of contract;
Count Eleven-implied covenant of good faith and fair dealing;
Count Twelve-fraudulent concealment;
Count Thirteen-negligence;
Count Fourteen-negligent misrepresentation; and
Count Fifteen-unjust enrichment.
Id.
On September 14, 2016, Deere moved to dismiss the Amended Complaint in its entirety
for failure to state a claim. (Filing No. 24.) In response, Armstrong withdrew several of the claims
alleged in the Amended Complaint, including the: breach of express warranty; breach of implied
warranty of merchantability; revocation of acceptance; tortious interference with business
relationships; breach of contract; breach of implied covenant of good faith and fair dealing; and
negligence claims 1. (Filing No. 30 at 1 n.1.)

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Accordingly, Counts Three, Four, Five, Six, Ten, Eleven and Thirteen are dismissed with prejudice.

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II.

LEGAL ANALYSIS

Federal Rule of Civil Procedure 12(b)(6) authorizes a defendant to move to dismiss a
complaint that fails to “state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
When deciding a motion to dismiss under Rule 12(b)(6), the court construes the complaint in the
light most favorable to the plaintiff, accepts all factual allegations as true, and draws all reasonable
inferences in favor of the plaintiff. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
However, courts “are not obliged to accept as true legal conclusions or unsupported conclusions
of fact.” Hickey v. O’Bannon, 287 F.3d 656, 658 (7th Cir. 2002).
While a complaint need not include detailed factual allegations, a plaintiff has the
obligation to provide the factual grounds supporting his entitlement to relief; and neither bare legal
conclusions nor a formulaic recitation of the elements of a cause of action will suffice in meeting
this obligation. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Stated differently, the
complaint must include “enough facts to state a claim to relief that is plausible on its face.” Hecker
v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (citation and quotation marks omitted). To be
facially plausible, the complaint must allow “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556).
III.

DISCUSSION

Deere asks the Court to dismiss the remaining claims alleged in the Amended Complaint:
Count One-breach of consumer and market protection statutes for all fifty states, including Indiana
and Illinois; Count Two-constructive fraud; Count Eight-common law fraud; Count Ninefraudulent misrepresentation; Count Twelve-fraudulent concealment; Count Fourteen-negligent
misrepresentation; and Count Fifteen-unjust enrichment. The Court will address each claim in turn.

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A. Choice of Law
As an initial matter, the Court must determine which law governs Armstrong’s claims. In
a case within federal diversity jurisdiction, a federal district court applies the choice of law rules
of the forum state. Land v. Yamaha Motor Corp., U.S.A., No. IP 00-220-C H/G, 2001 WL 243296,
at *2 (S.D. Ind. Mar. 8, 2001) (citations omitted). Accordingly, the Court will apply Indiana’s
choice of law rules in making its determination of which state’s law governs the substantive issues.
Under Indiana law, when determining which law governs tort claims, courts look to the
law of the place where the injury or loss occurred. Id. In contract cases, Indiana courts apply the
“most intimate contacts” rule. Eby v. York-Div., Borg-Warner, 455 N.E.2d 623, 626 (Ind. Ct. App.
1983) (citations omitted). Under the “most intimate contacts” rule, courts consider several factors,
including: 1) the place of contracting; 2) the place of negotiation of the contract; 3) the place of
performance; 4) the location of the subject matter of the contract; and 5) the domicile, residence,
nationality, place of incorporation and place of business of the parties.
Deere argues Indiana law applies to Armstrong’s claims because Armstrong is an Indiana
farmer; Armstrong purchased the Planter in Greenfield, Indiana; he utilized the Planter at his
Indiana farm; and Armstrong’s alleged injury occurred in Indiana. Deere notes the only connection
to Illinois is Deere’s headquarters. In his reply, Armstrong concedes that Indiana law applies to
all claims, except the ICFA claim. (Filing No. 30 at 14 n.2.) The Court concludes that Indiana law
governs Armstrong’s claims, and for reasons elaborated below, a determination regarding the
ICFA claim is unnecessary because Armstrong has not pled with particularity his ICFA claim.
B. Breach of Consumer and Market Protection Statutes, including Indiana and Illinois
In Count One, Armstrong alleges that Deere’s actions violated consumer and market
protection statutes of all fifty states of the United States, including Ind. Code § 24-5-0.5-1 et seq.,

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and Count Two alleges violations of Illinois’ Consumer Fraud and Deceptive Trade Practices Act.
Deere moves the Court to dismiss Counts One and Two of the Amended Complaint, arguing that
Armstrong lacks standing to assert a breach of consumer protection claim under all fifty state
statutes, and fails to state a claim under the Illinois consumer protection statute.
1. Standing
Article III of the Constitution requires that a plaintiff have standing to assert claims in
federal court. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). To establish standing,
Armstrong bears the burden of proving: 1) he suffered an “injury in fact”; 2) the injury resulted
from Deere’s conduct; and 3) a favorable ruling would redress the injury. Id.
Deere relies on Catlin when asserting Armstrong lacks standing to sue under the consumer
protection laws of any state other than Indiana because Armstrong is an Indiana farmer, Armstrong
purchased the Planter in Indiana, and Armstrong’s alleged injury occurred in Indiana. See Catlin
v. Hanser, No. 1:10-CV-0451-LJM-DML, 2011 WL 1002736, at *8 (S.D. Ind. Mar. 17, 2011)
(dismissing Plaintiff’s consumer fraud claims, other than those brought under Indiana and
California statutes, for lack of standing); see also Crichton v. Golden Rule Ins. Co., 576 F.3d 392,
396 (7th Cir. 2009) (holding non-resident plaintiffs may only sue under the Illinois consumer fraud
statute if the circumstances relating to the alleged fraudulent transaction occurred mostly in
Illinois); Baldwin v. Star Sci., Inc., 78 F. Supp. 3d 724, 728 (N.D. Ill. 2015) (noting serious
reservations about Plaintiff’s standing to assert claims on behalf of unnamed, proposed class
members under the laws of jurisdiction where Plaintiff has not suffered an injury).
In response, Armstrong argues that the question of whether he may pursue nationwide
claims under multiple state statutes is not a standing issue, but rather a choice of law issue. See
Morrison v. YTB Int'l, Inc., 649 F.3d 533, 536 (7th Cir. 2011) (“choice-of-law principles has

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nothing to do with standing, though it may affect whether a class should be certified—for a class
action arising under the consumer-fraud laws of all 50 states may not be manageable, even though
an action under one state’s law could be”); see also Arreola v. Godinez, 546 F.3d 788, 795 (7th
Cir. 2008) (noting, “it is best to confine the term ‘standing’ to the Article III inquiry and thus to
keep it separate from the plaintiff's entitlement to relief or her ability to satisfy the Rule 23
criteria”). Armstrong contends that Deere’s standing argument is premature and the Court should
address standing at the class certification stage. See Payton v. Cty. of Kane, 308 F.3d 673, 681 (7th
Cir. 2002) (holding plaintiffs who suffered injury in two Illinois counties may have standing to
represent a class suing nineteen Illinois counties if plaintiffs fulfill all the requirements of Rule
23); Burrow v. Sybaris Clubs Int'l, Inc., No. 13 C 2342, 2013 WL 5967333, at *3 (N.D. Ill. Nov.
8, 2013) (relying on Ortiz v. Fireboard Corp., 527 U.S. 815, 831 (1999) when denying defendant’s
motion to dismiss for lack of standing because “the Supreme Court has instructed that class
certification issues are ‘logically antecedent’ to Article III concerns, and thus may be resolved
first.”).
Armstrong’s reliance on Morrison, Arreola, and Payton is misplaced because the injuries
in those cases derive from a single policy or state law. See Morrison, 649 F.3d at 536 (the class
action complaint alleges only violation of the ICFA); Arreola, 546 F.3d at 795 (the alleged “injury
in fact” for both plaintiff and class members derived from the “Crutch Policy”); Payton, 308 F.3d
at 682 (noting “these punitive representatives were personally injured by the operation of the very
same statute that caused the injuries to all other members of the proposed class”) (emphasis
added). However, because Armstrong asserts personal injury only under Indiana and Illinois law,
the Court concludes that it need not decide the issue of standing because Armstrong’s allegations—
under both Illinois and Indiana consumer protection statutes—are insufficient to state a claim for

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consumer fraud. See Baldwin, 78 F. Supp. 3d at 728 (noting “[b]ecause [plaintiff’s] allegations are
ultimately insufficient to state a claim even under Illinois law the court concludes it need not decide
the issue of whether [plaintiff] has standing to proceed under other state statutes, on the assumption
that somebody he seeks to represent would have such standing.”).
2. Indiana Deceptive Consumer Sales Act (IDCSA)
To state a claim under the Indiana Deceptive Consumer Sales Act (“IDCSA”), Armstrong
must allege that Deere committed an uncured 2 or incurable 3 “deceptive act.” IND. CODE § 24-50.5-4. IDCSA defines “deceptive act” as a supplier making “representations as to the subject matter
of a consumer transaction,” including any representation that the subject of a consumer transaction
“has sponsorship, approval, performance, characteristics, accessories, uses, or benefits it does not
have which the supplier knows or should reasonably know it does not have.” IND. CODE § 24-50.5-3(b).
Deere argues that the Amended Complaint fails to state a claim for violation of the IDCSA
because Armstrong does not allege the commission of a “deceptive act” by Deere. The Amended
Complaint states:
John Deere knew or should have known that the uneven distribution of fertilizer
from its planters resulted in uneven emergence…John Deere knew that the
marketing materials and other express representations by it or its agents would
lead a reasonable consumer of its planters, including Plaintiff and Class members,
to believe that its planters would provide even distribution of fertilizer and to rely
on these representations of even distribution and emergence… John Deere knew or
should have known that its planters were not in conformity with its marketing
materials and other express representations…John Deere knew or should have
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A deceptive act is “uncured” if: 1) a consumer, damaged by the deceptive act, gave notice to the supplier; and 2) the
supplier failed to either: (i) offer to cure within thirty days after notice; or (ii) cure within a reasonable time after the
consumer accepted the supplier’s offer to cure. IND. CODE § 24-5-0.5-2(a)(7).

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An “incurable” deceptive act is defined as “a deceptive act done by a supplier as part of a scheme, artifice, or device
with intent to defraud or mislead.” IND. CODE § 24-5-0.5-2(a)(8).

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known that Plaintiff and Class members would and did rely on these representations
of even distribution and emergence.
(Filing No. 21 at 12) (emphasis added). Deere contends that vague references to its “marketing
materials and other express representations” are insufficient to allege a “deceptive act” and does
not satisfy the heightened requirements under Federal Rule of Civil Procedure 9(b). FED. R. CIV.
P. 9 (“In alleging fraud or mistake, a party must state with particularity the circumstances
constituting fraud or mistake.”). Deere also argues, even putting the lack of specificity aside, the
Court should dismiss Armstrong’s IDCSA claim because the two brochures, which Armstrong
relies on for the proposition that Deere made misrepresentations about the Planter, were published
by Deere in 2008 and 2010—well before the Planter was designed and placed on the market.
Armstrong has not responded to Deere’s contentions regarding the IDCSA claim, therefore,
he has conceded these points. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010)
(“Failure to respond to an argument . . . results in waiver,” and “silence leaves us to conclude” a
concession.); Myers v. Thoman, 2010 U.S. Dist. LEXIS 107502, at *11 (S.D. Ind. Oct. 6, 2010)
(“The Seventh Circuit has clearly held that a party who fails to respond to points made . . . concedes
those points.”); Cintora v. Downey, 2010 U.S. Dist. LEXIS 19763, at *12 (C.D. Ill. Mar. 4, 2010)
(“The general rule in the Seventh Circuit is that a party’s failure to respond to an opposing party’s
argument implies concession.”); Sequel Capital, LLC v. Pearson, 2010 U.S. Dist. LEXIS 109087,
at *22 (N.D. Ill. Oct. 12, 2010) (same); Thomas v. Am. Family Mut. Ins. Co., 2008 U.S. Dist.
LEXIS 92440, at *13–14 (N.D. Ind. Nov. 13, 2008) (same).
Even if Armstrong had addressed Deere’s contention, the Court finds that IDCSA claim
fails on the merits because the Amended Complaint does not allege a “deceptive act” or
misrepresentation specifically regarding the 2014 Planter. Accordingly, without any allegations of

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express representations or statements from a 2014 brochure that specifically address the Planter,
Deere’s motion to dismiss Count I, the IDCSA claim is granted.
3. Illinois Consumer Fraud and Deceptive Trade Practices Act (ICFA)
The ICFA protects consumers against “unfair or deceptive acts or practices,” including
“fraud,” “false promise,” and the “misrepresentation or the concealment, suppression or omission
of any material fact.” 815 ILCS 505/2. Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 574 (7th
Cir. 2012). To prevail on an ICFA claim, Armstrong must establish:
(1) a deceptive act or practice by the defendant, (2) the defendant’s intent that the
plaintiff rely on the deception, (3) the occurrence of the deception in the course of
conduct involving trade or commerce, and (4) actual damage to the plaintiff (5)
proximately caused by the deception.
Avery, 835 N.E.2d 850.
The Court dismisses Armstrong’s ICFA claim for similar reasons as mentioned above;
because the Amended Complaint fails to state a claim for breach of the ICFA. Count Two merely
asserts:
John Deere knew or should have known that its planters did not evenly distribute
fertilizer… John Deere knew or should have known that the uneven distribution of
fertilizer from its planters resulted in uneven emergence…Despite this knowledge,
John Deere has failed to disclose the existence of this material information to
Plaintiff and the Class at the time each of them purchased or leased the planters
here at issue, and/or at the time they made warranty claims related to the defective
planters. To the contrary, John Deere made affirmative representations regarding
the performance and reliability of the planter… John Deere’s acts and omissions
constitute unfair or deceptive acts prohibited by the ICFA.
(Filing No. 21 at 15-16) (emphasis added). The existence of a deceptive act or practice is the crux
of an ICFA claim, however, Armstrong’s assertion regarding Deere’s alleged deceptive act, is
merely conclusory. See Twombly, 550 U.S. at 555. Armstrong does not present facts regarding
any affirmative misrepresentations regarding the performance and reliability of the 2014 Planter,
but concludes only that “Deere made affirmative representations regarding the performance and
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reliability of the planters.” Such a conclusory statement is insufficient to satisfy the pleading
requirements of either Rule 8 or Rule 9. See DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir.
1990) (holding, under Rule 9(b) a plaintiff must state the “who, what, when, where, and how” of
the alleged fraud); Iqbal, 556 U.S. at 678.

Accordingly, because Count Two fails to provide

any allegations of express representations or statements from a 2014 brochure that specifically
address the Planter or any facts that would lead “the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged,” Deere’s motion to dismiss Count Two is
granted. See Iqbal, 556 U.S. at 678; see also De Bouse v. Bayer, 922 N.E.2d 309, 316 (2009)
(denying plaintiff’s consumer fraud by omission claim because “[a] consumer cannot maintain an
action under the [ICFA] when the plaintiff does not receive, directly or indirectly, communication
or advertising from the defendant).
C. Count Seven-Constructive Fraud
Count Seven alleges that Deere committed constructive fraud. “Constructive fraud arises
by operation of law from a course of conduct which, if sanctioned by law, would secure an
unconscionable advantage, irrespective of the existence or evidence of actual intent to defraud.”
Demming v. Underwood, 943 N.E.2d 878, 892 (Ind. Ct. App. 2011) (quotations omitted). The
elements of constructive fraud are:
(i) a duty owing by the party to be charged to the complaining party due to their
relationship; (ii) violation of that duty by the making of deceptive material
misrepresentations of past or existing facts or remaining silent when a duty to speak
exists; (iii) reliance thereon by the complaining party; (iv) injury to the complaining
party as a proximate result thereof; and (v) the gaining of an advantage by the party
to be charged at the expense of the complaining party.
JMB Mfg., Inc. v. Child Craft, LLC, No. 4:11-CV-0065-TWP-WGH, 2011 WL 4833094, at *3–4
(S.D. Ind. Oct. 12, 2011) (citations omitted).

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Deere asks the Court to dismiss Armstrong’s constructive fraud claim for two reasons.
Deere first asserts that Armstrong has not alleged any relationship between them that would
impose a duty to disclose. To assert a claim of constructive fraud under Indiana law, a plaintiff
must prove “the existence of a duty by virtue of a special relationship between the parties ...” Mudd
v. Ford Motor Co., 178 Fed. Appx. 545, 547 (7th Cir.2006) (applying Indiana law). Normally, the
“special relationship” is “fiduciary or confidential” in nature. Id. (citations omitted). Notably,
duties do not arise out of “arms-length, contractual arrangement.” Comfax Corp. v. North
American Van Lines, Inc., 587 N.E.2d 118, 125–26 (Ind. Ct. App. 1992); see also Remmers v.
Remmington Hotel Corp., 56 F.Supp.2d 1046, 1058 (S.D. Ind. 1999).
In response, Armstrong contends—because he is a long-standing Deere customer who
relied on and was accustomed to the effectiveness of Deere planters—Deere had a fiduciary duty
to disclose the new design of the 2014 Planter. See Schmitt v. Beekay Development LLC, 2008 WL
2691071, at *6 (S.D. Ind. July 3, 2008) (“With respect to the buyer-seller relationship, constructive
fraud may arise where one party is in the unique possession of knowledge not possessed by the
other and thus enjoys a position of superiority over the other.”).
The Court agrees that the Amended Complaint alleges a buyer-seller relationship between
Deere and Armstrong. Armstrong is a longstanding customer who purchased products from an
authorized local Deere dealer. Accordingly, because the local dealer is an agent of Deere, a buyerseller relationship exists. See Mudd, 178 Fed. Appx. at 547. In reply, Deere argues—even if a
relationship exists between Armstrong and Deere—Armstrong failed to allege that when buying
the Planter he expressly reposed a trust and confidence in Deere. See Scott v. Durham, No. 1:09CV-348-PPS-RBC, 2011 WL 8969, at *3 (N.D. Ind. Jan. 3, 2011) (“even in a buyer-seller context,
a duty to disclose does not necessarily arise.”). A seller with superior knowledge has a duty to

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disclose only when “the duty arises from the trust and reliance that one party must repose in the
other.” Id. (noting “concealment becomes fraud only when ... it appears that either one or each of
the parties, in entering into the contract or other transaction expressly reposes a trust and
confidence in the other”) (emphasis added). Because Armstrong does not allege that he was
required to place his trust in Deere, the Court finds that a duty to disclose did not arise. See id; see
also Schmitt, 2008 WL 2691071, at *6 (“Indiana courts have held that there is a duty to disclose if
the buyer makes specific inquiries about the condition on, the qualities of, or the characteristics of
the property… that did not happen here”) (citations and quotation marks omitted) (emphasis
added).
Deere next argues that the constructive fraud claim fails to allege that it made any
misleading representations about the 2014 Planter. The Court agrees and notes, as previously
mentioned, any reliance on the 2008 and 2010 brochures for the proposition that Deere made false
or misleading representations about the 2014 Planter is misplaced. Accordingly, because a duty
to disclose did not arise and absent any allegations of express representations or statements from
a 2014 brochure that specifically address the Planter, Deere’s motion to dismiss Count Seven is
granted.
D. Count Eight-Common Law Fraud and Count Nine-Fraudulent Misrepresentation
Deere requests dismissal of Armstrong’s common law fraud and fraudulent
misrepresentation claims. To establish common law fraud, Armstrong must prove: (1) a material
misrepresentation of past or existing fact which (2) was untrue, (3) was made with knowledge of
or in reckless ignorance of its falsity, (4) was made with the intent to deceive, (5) was rightfully
relied upon by the complaining party, and (6) which proximately caused the injury or damage

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complained of. Lawyers Title Ins. Corp. v. Pokraka, 595 N.E.2d 244, 249 (Ind. 1992) (citations
omitted).
The elements for a fraudulent misrepresentation claim are similar. To prevail on a
fraudulent misrepresentation cause of action, Armstrong must demonstrate that: (1) Deere made
false statements of past or existing material facts; (2) Deere made such statements knowing them
to be false or recklessly without knowledge as to their truth or falsity; (3) Deere made the
statements to induce Armstrong to act upon them; (4) Armstrong justifiably relied and acted upon
the statements; and (5) Armstrong suffered injury. See Wise v. Hays, 943 N.E.2d 835, 840 (Ind.
Ct. App. 2011).
Although Counts Eight and Nine specifically allege that “Deere either directly or through
its agents represented to the world, Plaintiff, and Class members that the planters provided even
distribution and emergence,” this statement fails to identify “when” “where” and “how” Deere
made the statement. See DiLeo, 901 F.2d at 627; (Filing No. 21 at 23, 24.) Armstrong attempts to
remedy the defects by pointing to the 2008 and 2010 brochures. The Court again finds, however,
that Armstrong’s reliance on these brochures is without merit and insufficient to support a claim
for common law fraud and fraudulent misrepresentation because the brochures do not regard the
2014 Planter. The 2008 and 2010 brochures were distributed prior to when the 2014 Planter
became available for purchase. The 2008 and 2010 brochures do not contain any false statements
or misrepresentations because Armstrong conceded, prior to purchasing the 2014 model Planter,
that he had “used [] Deere planters for years without substantial problems.” (Filing No. 21 at 4.)
Accordingly, the Court grants Deere’s motion to dismiss Counts Eight and Nine, Armstrong’s
common law fraud and fraudulent misrepresentation claims.

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E. Count Twelve-Fraudulent Concealment
Indiana common law recognizes a cause of action for fraudulent concealment. In effect,
fraudulent concealment is a species of actual fraud and occurs where there is a “failure to disclose
all material facts, by a party on whom the law imposes a duty to disclose...” Scott v. Durham, No.
1:09-CV-348-PPS-RBC, 2011 WL 8969, at *2 (N.D. Ind. Jan. 3, 2011). Similar to a constructive
fraud claim, in order to prevail on a fraudulent concealment claim, Armstrong must allege some
form of special relationship with Deere that justifies imposing a duty to disclose. See JMB, 2011
WL 4833094, at *2–3. The Court previously found that Armstrong does not have a special
relationship with Deere that justifies imposing a duty to disclose. Accordingly, Deere’s Motion to
dismiss Count Twelve is granted.
F. Count Fourteen-Negligent Misrepresentation
Deere next asks the Court to dismiss Armstrong’s negligent misrepresentation claim. In
Indiana, a defendant is liable for negligent misrepresentation when: 1) the defendant, in the course
of his business “supplies false information for the guidance of others in their business
transactions”; 2) the defendant fails to exercise reasonable care in communicating certain
information; 3) the plaintiff justifiably relies upon the information supplied by the defendant; and
4) the plaintiff suffers pecuniary loss as a result. Harrison Mfg., LLC v. Bienias, No. 4:11-CV00065-TWP, 2013 WL 6486668, at *6 (S.D. Ind. Dec. 10, 2013) (citations omitted). “The tort does
not require intent to deceive.” Id.
The Amended Complaint alleges that Deere is liable for negligent misrepresentation
because “Deere made affirmative representations, as detailed in this Complaint’s allegations,
regarding the [Planter’s] reliability and performance.” (Filing No. 21 at 29.) Armstrong again relies
on the promotional materials disseminated in 2008 and 2010 when asserting “misrepresentation”,

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however, the Court previously found—and Armstrong conceded—that those brochures do not
contain any false statements or misrepresentations. Accordingly, because Armstrong failed to
allege that Deere made false statements about the Planter, the Court grants Deere’s Motion to
dismiss Count Fourteen.
G. Count Fifteen-Unjust Enrichment
Lastly, Deere asks the court to dismiss Armstrong’s claim for unjust enrichment. A claim
for unjust enrichment “is a legal fiction invented by the common law courts in order to permit a
recovery ... where the circumstances are such that under the law of natural and immutable justice
there should be a recovery ...” Zoeller v. E. Chicago Second Century, Inc., 904 N.E.2d 213, 220
(Ind. 2009) (citation omitted). “A person who has been unjustly enriched at the expense of another
is required to make restitution to the other.” Id. (citation omitted). To prevail on a claim of unjust
enrichment, a claimant must establish that a measurable benefit has been conferred on the
defendant under such circumstances that the defendant’s retention of the benefit without payment
would be unjust. Id.
Deere argues that Armstrong failed to “state facts demonstrating an actual wrong or
misleading conduct.” See Hughes v. Chattem, Inc., 818 F. Supp. 2d 1112, 1124 (S.D. Ind. 2011)
(noting plaintiff failed to “articulate what wrongful benefit inured to the defendants and why they
should be granted the extraordinary remedy of an equitable claim for unjust enrichment”)
(emphasis added). Deere argues that Armstrong’s unjust enrichment claim also fails because it
does not derive from an “extraordinary circumstance,” but merely amounts to a person who
purchased a good that he is now dissatisfied with. Id. at 1125 (denying plaintiff’s unjust enrichment
claim for lack of an “extraordinary circumstance” where plaintiff reasonably expected to pay for
certain goods, but then grew dissatisfied with the goods.).

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In response, Armstrong argues that all three elements of an unjust enrichment claim are
satisfied: (1) he conferred a benefit upon Deere by purchasing a planter; (2) Deere has retained the
benefit that it realized as a result of the sale of that planter; and (3) Deere’s conduct in retaining
this benefit is wrong or unjust. (Filing No. 30 at 32-33.) Armstrong asserts that this is not a
situation where a purchaser is merely dissatisfied with a product. He contends that Deere
benefitted from misrepresenting the performance of the Planter and selling and leasing the Planter
at an artificially inflated value, causing Armstrong and the class members to over pay for the
Planter. Armstrong refers the Court to In re Bridgestone/Firestone, Inc. Tires Prod. Liab. Litig.,
155 F. Supp. 2d 1069 (S.D. Ind. 2001). In that case, the plaintiffs alleged the defendants sold them
defective tires for the price of non-defective tires. Applying the same elements that this Court
must apply, the Bridgestone/Firestone court held:
If Plaintiffs can demonstrate as a factual matter that their Tires and/or Explorers
are, in fact, defective and therefore worth less than they paid for them, then they (at
least those who purchased their Tires or Explorers from one of Defendants or
Defendants’ agents) will have shown that Defendants obtained a benefit (a higher
sale price) at the expense of Plaintiffs. The lack of a tread separation or a roll-over
incident will not preclude Plaintiffs from maintaining at their unjust enrichment
claim, and accordingly we hold that Defendants are not entitled to dismissal of this
claim on that basis.
Id. at 1104.
The Court concludes that this is not a situation where a plaintiff simply “grew dissatisfied
with the goods.” There is no dispute that prior-models of the Planter uniformly applied liquid
fertilizer, as advertised. Armstrong, as a long-standing customer of Deere planters, relied on the
advertisements and performance of prior-models when purchasing the Planter. The purchase of the
Planter, however, resulted in a decrease of profits, as well as a decrease in yield of Armstrong’s

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2,740 acres of corn crops—solely because Deere silently altered a key component of the Planter 4.
Deere concedes that a key component to maximizing production and yield when farming is
“achieving even emergence.” (Filing No. 21 at 4.) Accordingly, because Armstrong bargained for
a Planter with even distribution of fertilizer—similar to Deere’s prior models—but received only
a defective product that resulted in extraordinary loss of yield and profits, the Court denies Deere’s
motion to dismiss Count Fifteen. See Hughes, 818 F. Supp. 2d at 1124 (dismissing plaintiffs’
unjust enrichment claim where plaintiffs failed to “allege extraordinary circumstances, much less
that they did not receive the benefit of their bargain”) (emphasis added).
IV.

CONCLUSION

For the reasons stated above, the Court GRANTS in part and DENIES in part 5
Defendant Deere & Company’s Motion to Dismiss. (Filing No. 24.) The Court finds that the
Amended Complaint fails to state a claim for breach of the Indiana Deceptive Consumer Sales
Act; breach of Illinois Consumer Fraud and Deceptive Trade Practices Act; constructive fraud;
common law fraud; fraudulent concealment; fraudulent misrepresentation; and negligent
misrepresentation, and these claims are dismissed with prejudice. The Court, however, concludes
that Armstrong has properly pled a state law claim for Count Fifteen-unjust enrichment and this
claim survives the initial hurdle of a motion to dismiss.
SO ORDERED.

Date: 9/20/2017

Distribution:
4

It appears that Armstrong does not possess a 2014 brochure explaining the new design of the Planter. (Filing No.
30 at 25.)
5
Because the Court finds that Armstrong has not properly pled any of his claims under the state consumer protection
statutes, the Court need not discuss Deere’s assertion that Armstrong is precluded from seeking injunctive relief.

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Renae D. Steiner
HEINS MILLS & OLSON, P.L.C.
[e-mail]
James W. Anderson
HEINS MILLS & OLSON, PLC
[e-mail]
Christina Laun Fugate
ICE MILLER LLP
[e-mail]
Judith S. Okenfuss
ICE MILLER LLP
[e-mail]
Kevin B. Reidy
RILEY SAFER HOLMES & CANCILA LLP
[e-mail]
Sondra Hemeryck
RILEY SAFER HOLMES & CANCILA LLP
[e-mail]
Jason Ruskin Reese
WAGNER REESE & CROSSEN, LLP
[e-mail]
Stephen M. Wagner
WAGNER REESE LLP
[e-mail]

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