Schechner v. Whirlpool Corporation

Filing 27

OPINION and ORDER Granting in Part and Denying in Part Defendant's 11 Motion to Dismiss. Signed by District Judge Stephen J. Murphy, III. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TOBY SCHECHNER, et al.,
Plaintiffs,

Case No. 2:16-cv-12409

v.

HONORABLE STEPHEN J. MURPHY, III

WHIRLPOOL CORPORATION,
Defendant.
/
OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT'S MOTION TO DISMISS [11]
Plaintiffs filed a class-action complaint against Defendant Whirlpool Corporation. The
Plaintiffs allege causes of action related to Whirlpool's "AquaLift" oven self-cleaning
technology. Whirlpool moved to dismiss some of the counts for failure to state a claim. For
the reasons stated below, the Court will grant the motion in part and deny it in part.
BACKGROUND
Ten people from six states brought suit against Whirlpool: Toby Schechner and
Barbara Barnes from Florida; Laura Bliss from Michigan; Kathleen Jordan (she has already
voluntarily dismissed her case) and Louise Miljenovic from New Jersey; Kathryn Limpede
and Candace Oliarny from Idaho; Beverly Simmons from New Mexico; and Richard Thome
and Mary Ellen Thome from Arizona. They allege 12 causes of action related to Whirlpool's
AquaLift system, that arise under (1) Magnuson-Moss Warranty Act (MMWA) – Written
Warranty, 15 U.S.C. § 2301; (2) MMWA – Implied Warranty, 15 U.S.C. § 2301; (3) Breach
of Contract; (4) Breach of UCC Express Warranty; (5) Breach of UCC Implied Warranty of
Merchantability; (6) Unjust Enrichment; (7) Michigan Consumer Protection Act (MCPA),
M.C.L.A. § 445.902; (8) Florida Deceptive and Unfair Trade Practices Act (FDUTPA), Fla.

Stat. § 501.204; (9) New Jersey's Consumer Fraud Act (NJCFA), N.J.S.A. § 56:8-1; (10)
Arizona Consumer Fraud Act (ACFA), Ariz. Rev. Stat. § 44-1522; (11) Idaho Consumer
Fraud Act (ICFA), Idaho Code § 48-603; and (12) New Mexico Unfair Trade Practices Act
(NMUPA), New Mexico Statute § 57-12-3. Whirlpool's motion to dismiss followed.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint that
fails to state a claim upon which relief can be granted. When evaluating a claim under Rule
12(b)(6), the Court views the complaint in the light most favorable to the plaintiff, presumes
the truth of all well-pled factual assertions, and draws every reasonable inference in favor
of the non-moving party. Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th
Cir. 2008). But "the tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The Court may only grant a 12(b)(6) motion to dismiss if the allegations are not
"sufficient 'to raise a right to relief above the speculative level,' and to 'state a claim to relief
that is plausible on its face.'" Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir.
2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). If "a cause of
action fails as a matter of law, regardless of whether the plaintiff's factual allegations are
true or not," then the Court must grant dismissal. Winnett v. Caterpillar, Inc., 553 F.3d 1000,
1005 (6th Cir. 2009).
DISCUSSION
I.

Breach of Contract Claim
At the outset, the Court must address a threshold question: whether privity of contract

exists between the Plaintiffs and Whirlpool. A contract requires an "offer, acceptance,
2

consideration, and sufficient specification of essential terms." See, e.g., St. Joe Corp. v.
McIver, 875 So. 2d 375, 381 (Fla. 2004). Privity of contract exists between contracting
parties and intended beneficiaries. See Montgomery v. Kraft Foods Glob., Inc., No.
1:12-CV-00149, 2012 WL 6084167, at *13 (W.D. Mich. Dec. 6, 2012), aff'd, 822 F.3d 304
(6th Cir. 2016).
The intent of the contracting parties determines whether a third-party beneficiary is
intended or incidental. See, e.g., Schmalfeldt v. N. Pointe Ins. Co., 670 N.W.2d 651, 655
(Mich. 2003). If the contracting parties "have undertaken to give or do something directly
to or for" a third party, then the third party becomes an intended beneficiary. Montgomery,
2012 WL 6084167, at *18. And if the contracting parties have not done so, then the third
party is an incidental beneficiary and lacks privity of contract. Id. "It is axiomatic in the law
of contract that a person not in privity cannot sue on a contract." DAFCO LLC v. Stewart
Title Guar. Co., 331 P.3d 491, 496 (Idaho 2014). Thus, "only intended, rather than
incidental, third-party beneficiaries may sue when a contractual promise in their favor has
been breached." Montgomery, 2012 WL 6084167, at *18.
Here, the complaint alleges no facts to show that Whirlpool formed a contract with the
Plaintiffs. Plaintiffs allege that they bought their ovens from third-party retailers, not directly
from Whirlpool. Am. Compl. ¶¶ 14, 19, 24, 30, 37, 42, 48, 54, 58, ECF No. 5. Therefore
"[n]o privity of contract exists between [Plaintiffs], who [bought] from a retailer, and
[Whirlpool] who has not sold directly to the consumer." See Montgomery, 2012 WL
6084167, at *18.
Plaintiffs contend, however, that they are the intended beneficiaries of any contract
between Whirlpool and its retailers. The argument fails. Plaintiffs do not plead facts to
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identify the specific contract to which they claim privity. And Plaintiffs' allegations fail to
show that Whirlpool and the retailers "intended in entering their contract to directly benefit"
Plaintiffs. See id. at *13–14. Moreover, Plaintiffs muster no authority to support the
proposition that an end-user consumer is an intended beneficiary to a contract between
a remote manufacturer and a retailer.
Instead, Plaintiffs rely on a series of contradictory or inapposite cases. See Resp.
34–35, ECF No. 23. The most relevant case Plaintiffs cite to support their
intended–beneficiary theory, Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So.
2d 1028, 1030 (Fla. Dist. Ct. App. 1994), involves a consumer who purchased a yacht from
a manufacturer. The purchaser sued the manufacturer and a company that had been hired
to paint the yacht. Id. The purchaser alleged he was the intended beneficiary of the contract
between the manufacturer and painting company. Id. The Caretta court held that the
purchaser lacked privity of contract with the parties because the manufacturer and paint
company had not "expressly intended their contract benefit Caretta directly." Id. Thus, the
holding in Caretta stands for the exact opposite proposition asserted by Plaintiffs here.
Alternatively, Plaintiffs argue that a determination of privity is premature. Plaintiffs cite
three cases in which courts declined to rule on privity in resolving motions to dismiss. But
each case is distinguishable. In Date, an unresolved choice-of-law issue led to the court's
decision not to address privity. Date v. Sony Elecs., Inc., No. 07-CV-15474, 2010 WL
3702599, at *8 (E.D. Mich. Sept. 16, 2010). The Date court had not yet determined which
state law governed—New York or California. If New York law applied, then a lack of privity
would have been "fatal to Plaintiffs' express warranty claims." Id. Under those uncertain
circumstances, the court declined to address privity.
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In Yvon, the court declined to address privity because the complaint "[did] not state
that either or both of defendants actually sold [a] boat to plaintiff." Yvon v. Baja Marine
Corp., 495 F. Supp. 2d 1179, 1183 (N.D. Fla. 2007). The Yvon court determined that
"whether there was or was not privity is a factual question that cannot properly be resolved
on the instant motion to dismiss." Id. Similarly, in Azek, the court declined to address privity
because the plaintiffs had "alleged sufficient facts to raise a question of fact concerning
whether Plaintiffs and Defendant [were] in privity." In re AZEK Bldg. Prod., Inc., Mktg. &
Sales Practices Litig., 82 F. Supp. 3d 608, 618 (D.N.J. 2015).
Here, though, unlike in Date, the Court faces no unresolved choice-of-law issues to
hamper the analysis of privity. And no question of fact regarding privity exists. Each Plaintiff
alleges they bought their oven from a third-party retailer, not from Whirlpool. Am. Compl.
¶¶ 14, 19, 24, 30, 37, 42, 48, 54, 58, ECF No. 5. And no Plaintiff alleges a specific contract
between Whirlpool and the retailers with the express intent to directly benefit Plaintiffs.
Unlike in Yvon and Azek, Plaintiffs here have not alleged a factual question of privity; the
Court may resolve the issue as a matter of law. Because the Plaintiffs have pleaded
insufficient facts to establish privity of contract between Whirlpool and the Plaintiffs, the
Court will dismiss with prejudice Plaintiffs' breach of contract claim.
II.

Warranty Claims
Plaintiffs allege—and Whirlpool moves to dismiss—four warranty-based causes of

action: breach of UCC express warranty, breach of UCC implied warranty, breach of
MMWA written warranty, and breach of MMWA implied warranty.
A. UCC Warranty Claims

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Whirlpool argues that the Court should dismiss the UCC express and implied warranty
claims of Barnes, Simmons, Oliarny, and the Thomes for lack of pre-suit notice. State law
governs Plaintiffs' express and implied warranty claims. See In re Ford Motor Co. Speed
Control Deactivation Switch Prod. Liab. Litig., No. MDL 1718, 2007 WL 2421480, at *6
(E.D. Mich. Aug. 24, 2007) ("[W]arranty claims asserted by the Florida, Texas and Illinois
Plaintiffs are governed by those states' UCC statutes."); see also Schultz v. Tecumseh
Prod., 310 F.2d 426, 428 (6th Cir. 1962) (holding that under Michigan conflict-of-law rules,
"the law of the place of the sale determines the extent and effect of the warranties which
attend the sale"); UCC § 1-105 cmt. 2 (stating that the UCC "applies to any transaction
which takes place in its entirety in a state which has enacted" the Code). As a result, the
Court will apply the law of the state where each Plaintiff purchased her oven.
Under Florida, Arizona, Idaho, and New Mexico law, a buyer who seeks to assert a
warranty claim "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." Fla. Stat. §
672.607(3)(a); Ariz. Rev. Stat. § 47-2607(C)(1); Idaho Code § 28-2-607(3)(a); N.M. Stat.
§ 55-2-607(3). Legally sufficient notice "let[s] the seller know that the transaction is still
troublesome and must be watched." See U.C.C. § 2-607, cmt. 4; see, e.g., Malkamaki v.
Sea Ray Boats, Inc., 411 F. Supp. 2d 737, 742 (N.D. Ohio 2005).
Barnes alleges she bought her Whirlpool oven in June 2013 and first tried to use the
self-clean feature on her appliance in November 2013. Am. Compl. ¶¶ 118, 120, ECF No.
5. She was dissatisfied with the results because "the AquaLift did not effectively loosen the
hardened debris, stains and cooking grease[.]" Id. ¶ 120. Yet she did not submit an online
complaint to Whirlpool until June 2016—two and a half years after she first noticed a
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problem. Id. ¶ 123. The oven's written warranty provided that both the express and implied
warranties expired one year from purchase. See Def. Exh. 2(B), ECF No. 11-3.
Florida courts generally require a buyer to provide notice of a product defect within
18 months of discovering the defect. See In Re Vincent, 10 B.R. 549, 553 (Bankr. M.D. Fla
1981). Barnes provided notice two and a half years after she noticed a problem and three
years after she purchased the oven. After taking the facts Barnes asserts as true, her claim
cannot succeed as a matter of law due to untimely notice. The Court will dismiss without
prejudice Barnes's express and implied UCC warranty claims.
Simmons bought her oven on August 5, 2015, Am. Compl. ¶ 160, ECF No. 5, and
first noticed a problem with the self-cleaning technology "within a few weeks of purchase."
Id. ¶ 163. Simmons does not allege she provided any individual notice to Whirlpool of the
defect in the self-cleaning oven. Id. ¶¶ 160–66. Accordingly, the Court will dismiss without
prejudice Simmons's express and implied UCC warranty claims.
Oliarny first noticed a problem with her oven's self-cleaning system "[i]n or around
March 2016." Id. ¶ 156. She alleges that she "tried to have the oven serviced" in or around
April 22, 2016, "[i]n accordance with the terms of Whirlpool's 'One Year Limited Warranty."
Id. ¶ 157. And again in August, 2016, another service company "paid a visit to Ms. Oliarny's
home to address the inoperable Aqualift issue." Id. ¶ 158.
Oliarny alleges that she sought warranty service, but appears to have contacted the
retailer or another service company, not Whirlpool. She does not allege that she provided
individual notice to Whirlpool or that she requested warranty service from Whirlpool.
Plaintiffs' general assertion that "repair attempts by an authorized dealer fall within the
realm of proper notice," Mountain-Aire Refrigeration & Air Conditioning Co. v. Gen. Elec.
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Co., 703 P.2d 577, 580 (Ariz. Ct. App. 1985), is unavailing because Oliarny does not allege
that the service companies were Whirlpool's authorized agents and, in any event, Idaho law
applies to Oliarny's claim, not Arizona law. As a result, the Court will dismiss without
prejudice Oliarny's express and implied UCC warranty claims.
The Thomes first noticed a problem with the self-clean feature on their oven in
November 2014. Am. Compl. ¶ 140, ECF No. 5. But the Thomes fail to allege that they
provided any individual notice to Whirlpool that the product was troublesome. See id. ¶¶
138–44. Although in Arizona filing a lawsuit can—by itself—serve as notice, the Thomes's
suit provided insufficient notice because 18 months had elapsed from the time they
discovered the defect to when they filed the suit. Under Arizona law, this is an
unreasonable delay. See Burge v. Freelife Int'l, Inc., No. CV09-1159-PHX-JAT, 2009 WL
3872343, at *6 (D. Ariz. Nov. 18, 2009) (dismissing buyer's warranty claim because plaintiff
waited 17 months to provide notice after discovering defect because "such delays are
unreasonable as a matter of law."). The Court will dismiss without prejudice the Thomes's
express and implied UCC warranty claims.
Plaintiffs argue that—regardless of whether they provided individualized
notice—Whirlpool had actual notice that the AquaLift system was troublesome. According
to Plaintiffs, the demand letter sent to Whirlpool three months before filing suit served as
notice for the entire class. Plaintiffs cite to Seroyer v. Pfizer, Inc., 991 F. Supp. 1308,
1314–15 (M.D. Ala 1997) to support their position. But Seroyer does not bear the weight
of Plaintiffs' argument. The Seroyer court noted only that plaintiffs intended their demand
letter to serve as pre-suit notice. Id. The court did not, however, address the question of
whether plaintiffs' demand letter actually satisfied the legal requirement of notice, nor was
8

that question before the court. The notice requirement creates "individualized questions of
fact" that cannot be met by a class-action demand letter. Cohen v. Implant Innovations,
Inc., 259 F.R.D. 617, 642 (S.D. Fla. 2008) ("The buyer must notify the seller that the goods
are nonconforming in order to recover damages for breach of either an express or implied
warranty."). Plaintiffs' pre-suit demand letter failed to provide individualized notice and thus
failed to provide sufficient legal notice to Whirlpool.
Plaintiffs also argue that Whirlpool received notice from "countless dissatisfied
consumers [who] complained directly to Whirlpool." Resp. 31, ECF No 23. The argument
is without merit. The notice requirement is "a highly individualized factual determination"
that cannot be established by pointing to complaints from other customers. See, e.g.,
Cohen, 259 F.R.D. at 642 (holding that, to meet the notice requirement, "each putative
class member would have to show that he or she gave the defendant notice within a
reasonable time").
i. UCC Express Warranty Claims
Whirlpool argues that the express-warranty claims of Schechner, Barnes, and the
Thomes fail for another reason: lack of privity. But since the UCC express-warranty claims
of Barnes and the Thomes fail for lack of notice, the Court need only address the argument
as to Schechner.
"The law of Florida is that to recover for the breach of a warranty, either express or
implied, the plaintiff must be in privity of contract with the defendant." T.W.M. v. Am. Med.
Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995); see also Weiss v. Johansen, 898 So.
2d 1009, 1012 (Fla. Dist. Ct. App. 2005) ("[T]o recover for the breach of a warranty either
express or implied, the plaintiff must be in privity of contract with the defendant."). Recent
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cases applying Florida law, however, have found an exception to the principle. See, e.g.,
Garcia v. Kashi Co., 43 F. Supp. 3d 1359, 1389 (S.D. Fla. 2014).
Under Florida law, "[w]hile privity is generally necessary for breach of express
warranty claims, courts have relaxed this requirement where the express warranty was
clearly intended to cover subsequent purchasers." Karhu v. Vital Pharm., Inc., No.
13-60768-CIV, 2013 WL 4047016, at *6 (S.D. Fla. Aug. 9, 2013) (internal citation omitted).
In Karhu, the court noted that "express warranties . . . were contained on the packaging
and in the advertisements, both clearly directed toward the end-purchaser. Accordingly,
based on the particular facts of this case, privity is not required to state a claim for breach
of express warranty[.]" Id. Based on Karhu and Garcia, Plaintiffs conclude that Whirlpool's
advertisements warranted that the AquaLift system would self-clean an oven in 50 minutes;
Schechner relied on those advertisements; and therefore Florida's privity requirement does
not apply to her express warranty claim.
But both Karhu and Garcia also explained a limitation to the privity exception: privity
is still required—regardless of advertisements and warranties on the packaging—if the
consumer "could reasonably rely on a learned intermediary . . . to give him relevant
information regarding the product and its warranties." Karhu, 2013 WL 4047016, at *6;
accord Garcia, 43 F. Supp. 3d at 1389 (holding that privity is required to state a claim for
express warranty if "it could be assumed that the end-purchaser might expect the seller or
'middle man' to have relevant knowledge, or even expertise, regarding the manufacturer's
product") (quoting Smith v. Wm. Wrigley Jr. Co., 663 F. Supp. 2d 1336, 1343 (S.D. Fla.
2009)). Garcia explained that when a consumer has sufficient access to a knowledgeable
middle-man, then the consumer must allege privity of contract to bring an express warranty
10

claim against a remote manufacturer. 43 F. Supp. 3d at 1389. For instance, a consumer
who purchased a product from "a doctor installing an implant or a computer salesman"
would need to show privity to sue a remote manufacturer for breach of express warranty,
while a consumer who purchased gum from a convenience-store cashier would not. Id.
(quoting Wrigley, 663 F. Supp. at 1343).
Here, Schechner alleges that she bought her oven from the retailer Lowes. Am.
Compl. ¶ 106, ECF No. 5. She states that "at the time of her purchase, the manager of the
Lowe’s store demonstrated the proper use and operation of AquaLift feature, which Ms.
Schechner fully understood." Id. ¶ 107. Like a salesman selling a computer—and unlike a
cashier selling gum—a store manager selling a major appliance has relevant knowledge
and expertise to share with the consumer regarding the product. And Schechner alleges
that the manager provided her with relevant information regarding the operation of the
AquaLift system. Id. ¶ 107. As a result, the express warranty privity exception does not
apply to Schechner's claim. She fails to plead facts to show privity, and Florida law
precludes her claim for breach of UCC express warranty.
ii. UCC Implied Warranty Claims
Whirlpool argues that the UCC implied-warranty claims of Schechner, Barnes,
Limpede, Oliarny, and the Thomes fail for lack of privity. The Court need only address the
motion as to Plaintiff Schechner and Limpede since the UCC implied warranty claims of
Barnes, Oliarny, and the Thomes fail for lack of notice.
Both Idaho and Florida law require privity between a buyer and a seller to prevail on
an implied-warranty claim. See, e.g., Am. W. Enterprises, Inc. v. CNH, LLC, 316 P.3d 662,
668 (Idaho 2013) ("Privity of contract is required in a contract action to recover economic
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loss for breach of implied warranty."); Mesa v. BMW of N. Am., LLC, 904 So. 2d 450, 458
(Fla. Dist. Ct. App. 2005) ("Under Florida law, a plaintiff cannot recover economic losses
for breach of implied warranty in the absence of privity."). As noted above, Plaintiffs
Schechner and Limpede have failed to allege facts that, taken as true, would establish
privity of contract with Whirlpool. Therefore, their UCC implied warranty claims fail under
Idaho and Florida law.
Plaintiffs contend, however, that Whirlpool's "direct advertising to end-users"
establishes privity for the purposes of a breach of implied (and express) warranty claim.
Resp. 24–28, ECF No. 23. Some courts have found that a plaintiff need not allege privity
of contract as an element to a breach of warranty claim. See Goldemberg v. Johnson &
Johnson Consumer Companies, Inc., 8 F. Supp. 3d 467, 482 (S.D.N.Y. 2014); Bietsch v.
Sergeant's Pet Care Prod., Inc., No. 15 C 5432, 2016 WL 1011512, at *6 (N.D. Ill. Mar. 15,
2016), Naiser v. Unilever U.S., Inc., 975 F. Supp. 2d 727, 738 (W.D. Ky. 2013). The
Goldemberg, Bietsch, and Naiser courts applied New York, Illinois, and Kentucky state law,
respectively.
But here, Florida and Idaho state laws apply and leave no room for doubt: "Florida
courts have required a plaintiff to be in privity with a defendant in order to recover for
breach of express or implied warranty . . . A plaintiff who purchases a product, but does
not buy it directly from the defendant, is not considered to be in privity with that defendant."
Hill v. Hoover, 899 F. Supp. 2d 1259, 1267 (N.D. Fla. 2012); see also Am. W. Enterprises,
316 P.3d at 668 (recognizing no privity of contract exists between a buyer and
manufacturer who "did not deal directly with each other" because "there was no written
contract between" the parties and the sole purpose of the manufacturer providing the goods
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to the retailer "was to make a profit"). Accordingly, the Court will dismiss without prejudice
the UCC implied warranty claims of Schechner and Limpede for lack of privity.
B. MMWA Written Warranty Claim
The MMWA creates a federal cause of action "for violation of the Act's terms, as well
as for breaches of warranty arising from state substantive law." Kuns v. Ford Motor Co.,
543 F. App'x 572, 575 (6th Cir. 2013) (citing 15 U.S.C. § 2310(d)(1)). Under the MMWA,
written warranties come in two forms: (1) a written promise to "refund, repair, replace, or
take other remedial action;" or (2) a "written affirmation of fact." 15 U.S.C. § 2301(6).
According to Whirlpool, Plaintiffs have failed to state a claim under either theory.
i. Whirlpool's Limited One-Year Warranty
Plaintiffs claim that Whirlpool violated the terms of its one-year limited warranty and
is liable under the MMWA for breaching a written promise to "refund, repair, replace" or
remediate the AquaLift system. Whirlpool contends that Plaintiffs only allege facts to show
a design defect, and—as Plaintiffs concede—the one-year warranty expressly limits
Whirlpool's repair and replace obligations to defects in "materials or workmanship." Mot.
18, ECF No. 11 (citing Coba v. Ford Motor Co., No. 12-1622 (KM) (MAH), 2016 WL
5746361, at *9 (D.N.J. Sept. 30, 2016) (joining "the majority of cases, in holding that design
defects are not covered by this express workmanship and materials warranty")). Whirlpool
concludes that, by failing to allege a manufacturing defect, Plaintiffs fail to allege a breach
of the warranty. Plaintiffs respond that the amended complaint contains sufficient
allegations to support a manufacturing-defect claim, which is covered under the one-year
warranty, and that the parties require discovery to determine the details of the defect.

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A MMWA claim fails as a matter of law if it alleges a design defect, but is brought
under "an express written warranty covering 'materials and workmanship[.]'" In re Toyota
Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prod. Liab. Litig., 754 F.
Supp. 2d 1145, 1181 (C.D. Cal. 2010); see also Voelker v. Porsche Cars N. Am., Inc., 353
F.3d 516, 527 (7th Cir. 2003) (affirming dismissal of warranty claim alleging design defects
under warranty that did not cover design defects). "[D]efects in material and workmanship
refer to departures from a product's intended design while design defects refer to the
inadequacy of the design itself." Bruce Martin Const., Inc. v. CTB, Inc., 735 F.3d 750, 753
(8th Cir. 2013). For example, "[a] design defect . . . exists when the product is built in
accordance with its intended specifications, but the design itself is inherently defective." In
re Toyota, 754 F. Supp. 2d at 1181. But if "sufficient facts are alleged to assert both" a
design and a manufacturing defect, "then dismissal at the pleading stage is premature."
Alin v. Am. Honda Motor Co., No. CIV A 08-4825 KSH, 2010 WL 1372308, at *6 (D.N.J.
Mar. 31, 2010).
Here, Plaintiffs' amended complaint makes allegations that the AquaLift system
suffered from a design defect. See Am. Compl. ¶ 5, ECF No. 5 (alleging that the "AquaLift
feature was defectively designed"); id. ¶ 173(c) ("Whirlpool had a duty to disclose the
design flaw in AquaLift"); id. at ¶ 185 (alleging Whirlpool failed to "fix the inherent defects
of the AquaLift" system); id. at ¶ 13 (alleging that Whirlpool's "AquaLift technology is
defective and incapable of performing" as promised). But in addition to the references to
a design defect, Plaintiffs also refer to the oven's material at least three times. Id. ¶¶ 2, 77,
82. And the Plaintiffs' complaint is replete with more general allegations that Aqualift did not
perform as advertised. See, e.g., id. ¶¶ 8, 15, 21, 26, 34, 46, 56, 63, 205, 107, 108, 122,
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127, 129, 136, 140, 143, 150, 156, 164. Although the complaint does not specifically use
the phrase "manufacturing defect," the complaint's general allegations of a defective
product coupled with the references to the AquaLift's material provide sufficient facts to
support either a design or a manufacturing-defect theory.
Whirlpool argues, however, that the written warranty claim still fails because Plaintiffs
have not pled facts to show they sought warranty service within the warranty period. To
state a claim for breach of a written warranty, a party must allege they provided "individual
notice to Defendants of the alleged defect" and that they requested warranty service "within
the [time] period set forth in the Limited Warranty." In re Ford Motor Co. Speed Control
Deactivation Switch Prod. Liab. Litig., No. MDL 1718, 2007 WL 2421480, at *6 (E.D. Mich.
Aug. 24, 2007).
Here, Whirlpool's one-year limited warranty expired one year from the date of
purchase. See Def. Exh. 2(c), ECF No. 11-3. Whirlpool concedes that Schechner and
Oliarny pled sufficient facts to show that they asked Whirlpool to perform under the limited
warranty within one year. Mot. 21, ECF No. 11. But Whirlpool challenges the remaining
MMWA written warranty claims from Simmons, the Thomes, Barnes, Bliss, Miljenovic, and
Limpede for failure to allege both notification to Whirlpool and a request for service within
one year of purchasing the oven.
As an initial matter, Simmons and the Thomes do not allege they ever contacted
Whirlpool about their ovens. See Am. Compl. ¶¶ 47–57, 53–57, 138–41, 160–66, ECF No.
5. Barnes alleges that she contacted Whirlpool three years after she bought her oven and
therefore two years after the warranty expired. Id. ¶¶ 118, 123. Bliss and Miljenovic claim
that they contacted Whirlpool to express their dissatisfaction with the AquaLift system. Id.
15

¶¶ 105, 137. But they do not claim that they requested warranty service. Id. Likewise,
Plaintiff Limpede alleged she complained to a Maytag representative who told her to run
the AquaLift feature "after each use of the oven" but fails to allege a request for warranty
service. Id. ¶ 151.
Plaintiffs responded that they "each provided timely notice of the AquaLift Defect"
under the warranty. Resp. 23, ECF No. 23. But Plaintiffs support the assertion with citations
to the complaint which allege only that Plaintiff Schechner provided notice. Id. (citing ¶¶
14–18, 106–117). Since Simmons, the Thomes, Barnes, Bliss, Miljenovic, and Limpede
have failed to plead facts alleging breach of the one-year warranty, their claims fail as a
matter of law. Accordingly, the Court will dismiss without prejudice the MMWA written
warranty claims of Simmons, the Thomes, Barnes, Bliss, Miljenovic, and Limpede that
allege a breach of Whirlpool's one-year limited warranty.
ii. Whirlpool's Advertisements
Plaintiffs contend that Whirlpool's advertisements created a written "affirmation-offact" warranty under the MMWA. Specifically, Plaintiffs point to Whirlpool's representations
that AquaLift would self-clean an entire oven in one hour. Id. ¶¶ 69, 72, 81, 91–92.
Not every affirmation of fact made by a manufacturer creates a warranty. Rather, two
requirements must be met: (1) the statement must "relate[] to the nature of the material or
workmanship" and (2) the statement must "affirm[] or promise[] that such material or
workmanship is defect free; or will meet a specified level of performance over a specified
period of time." 15 U.S.C. § 2301(6). Whirlpool argues that its advertisements fail to satisfy
MMWA's statutory definition of warranty because they promised neither defect-free
performance nor performance over a specified period of time.
16

"The word 'defect' is not defined within the MMWA, nor is there case law explicitly
interpreting the term." Larsen v. Trader Joe's Co., No. C 11-05188 SI, 2012 WL 5458396,
at *3 (N.D. Cal. June 14, 2012). In Trader Joe's, the court relied on the Oxford English
dictionary definition of defect: "the fact of being wanting or falling short; a blemish or flaw."
Id. Plaintiffs note that the Oxford dictionary definition has since been updated to include "a
shortcoming, imperfection, or lack." Resp. 19, ECF No. 23. Applying the dictionary
definition used in Trader Joe's, Plaintiffs argue that Whirlpool's advertisements meet the
MMWA written-warranty defect-free requirement because the ads set forth a written
affirmation of fact that AquaLift would not "fall short" of the promise to clean the oven in
under an hour. Id.; see also Am. Compl. ¶¶ 69, 72, 81, 91–92, ECF No. 5 (Whirlpool's
alleged affirmations-of-fact).
The MMWA defines written warranty narrowly and "[c]ourts have declined to extend
the term . . . beyond its statutory definition." In re ConAgra Foods, 908 F. Supp. 2d 1090,
1102 (C.D. Cal. 2012). The unambiguous statutory definition of a written affirmation-of-fact
warranty requires the warrantor to make an affirmation or promise of defect-free
performance. 15 U.S.C. § 2301(6). For example, a mere "product description" may implicitly
promise a product will meet expectations or not fall short, but it does not affirmatively
promise defect-free performance and it therefore falls outside MMWA's definition. See
Bowling v. Johnson & Johnson, 65 F. Supp. 3d 371, 378 (S.D.N.Y. 2014); see also
Forcellati v. Hyland's, Inc., No. CV121983GHKMRWX, 2015 WL 9685557, at *6 (C.D. Cal.
Jan. 12, 2015) (finding that defendants had not "promised that the Class Products are
'defect free' because guaranteeing that something is effective or fast-acting is not a
guarantee that it will not have flaws").
17

Whirlpool’s advertisement—that the oven would self-clean in under an hour—makes
no affirmative promise of defect-free performance. Rather, the advertisement is more fairly
characterized as a description of anticipated product performance. Moreover, Whirlpool's
advertisements repeatedly warned customers not to expect perfection: "[h]eavily soiled
ovens may require a second cleaning cycle;" [a]dditional cleaning cycles may be run to help
remove stubborn soils." Am. Compl. ¶ 85, ECF No. 5 (Oven Cleaning Quick Reference
Guide). Accordingly, Plaintiffs do not plead sufficient facts to support their legal conclusion
that Whirlpool promised defect-free performance.
Alternatively, to allege a cause-of action under the MMWA, Plaintiffs may plead that
Whirlpool promised "a specified level of performance over a specified period of time." 15
U.S.C. § 2601(6). Plaintiffs contend that Whirlpool's representation that the oven would
self-clean in 50 minutes satisfies the temporal element of the MMWA. See Resp. 20, ECF
No. 23 (citing Brady v. Basic Research, L.L.C., 101 F. Supp. 3d 217, 234 (E.D.N.Y. 2015)
(MMWA warranty created by defendant's representation that a product "would provide
consumers with 'Rapid Weight Loss' and '456% More Weight Loss Than America's # 1
selling Ephedra–Based Diet Pill,' in 'a little over 6 weeks' of use")). Whirlpool argues,
however, that "over a specified period of time" refers not to the anticipated product
performance but to "the duration of the warranty." See Mot. 16–17, ECF No. 11 (citing
Kelley v. Microsoft Corp., No. C07-0475MJP, 2007 WL 2600841, at *5 (W.D. Wash. Sept.
10, 2007) ("Windows Vista Capable" is not an express warranty under MMWA because "the
warrantor's guarantee must contain language that specifically identifies the duration of the
warranty.")).

18

Some courts have found that any promise of performance over time satisfies the
"specified period of time" requirement. See, e.g., Friedman v. Guthy-Renker LLC, No. 2:14CV-06009-ODW, 2015 WL 857800, at *7 (C.D. Cal. Feb. 27, 2015) (statement that product
is fit for "everyday-use" satisfies MMWA temporal requirement). But other courts have
required more specificity. See, e.g., Hart v. BHH, LLC, No. 15CV4804, 2016 WL 2642228,
at *4 (S.D.N.Y. May 5, 2016) (holding that the "temporal reference" that the Pest Repellers
work "fast" "is hardly a representation that the Repellers will meet a specified level of
performance over a specified period of time"). And some courts have found the temporal
requirement to have been satisfied when an advertisement unambiguously promises
performance over a given period of time. See, e.g., Reid v. GMC Skin Care USA Inc., No.
815CV277BKSCFH, 2016 WL 403497, at *14 (N.D.N.Y. Jan. 15, 2016) (denying
defendant's motion to dismiss MMWA claim because "Plaintiffs have plausibly alleged a
claim that Defendant issued a written warranty promising results within a 28-day time
period, thus satisfying the MMWA's temporal element"). When an advertisement makes an
"equivocal representation" about product performance over time, however, the temporal
requirement is not met. In re Scotts EZ Seed Litig., No. 12 CV 4727 VB, 2013 WL 2303727,
at *4 (S.D.N.Y. May 22, 2013) (dismissing MMWA claim that "50% thicker with half the
water in 32 days" because defendant also advised customer that "results may vary").
If Whirlpool had made a blanket assertion that e.g., AquaLift "will self-clean an oven
in 50 minutes," the Court would face a more difficult legal question. But Whirlpool made no
such assertion. Instead—like the defendant in Scotts EZ Seed—Whirlpool "expressly
caution[ed] purchasers that they might not experience the promised result" in one hour. Id.
at *5. Whirlpool informed customers—multiple times—that one cycle in one hour might not
19

get the job done. See Whirlpool's "Oven Cleaning Quick Reference Guide," Am. Compl. ¶
85, ECF No. 5 (warning consumers that "[h]eavily soiled ovens may require a second
cleaning cycle;" "[a]dditional cleaning cycles may be run to help remove stubborn soils;"
and instructing customers to "use regularly to clean oven spills"). Thus, Whirlpool's
"equivocal representations" fall short of the standard set by MMWA to create an affirmationof-fact warranty. Plaintiffs' allegations fail to state a claim under the MMWA. Accordingly,
the Court will dismiss with prejudice Plaintiffs' MMWA written warranty claims that
Whirlpool's advertisements created an affirmation-of-fact warranty.
D.

MMWA Implied Warranty

The MMWA "creates a federal cause of action for violation of a warranty implied by
state law[.]" In re Anheuser-Busch Beer Labeling Mktg. & Sales Practices Litig., 644 F.
App'x 515, 516 (6th Cir. 2016) (citing 15 U.S.C. § 2301). The Plaintiffs' MMWA implied
warranty claims will succeed—or fail—for the same reasons as their state-law UCC implied
warranty claims. See id. As noted above, the UCC implied warranty claims of Barnes,
Simmons, Oliarny, and the Thomes fail for lack of notice. And Schechner and Limpede's
UCC implied warranty claims fail for lack of privity. Accordingly, the Court will dismiss
without prejudice the MMWA implied warranty claims of Barnes, Simmons, Oliarny, the
Thomes, Schechner, and Limpede for the same reasons as their UCC implied warranty
claims.
III.

State-law Claims
Whirlpool moves to dismiss Plaintiffs' state law causes-of-action for unjust enrichment

and violations of Florida Deceptive and Unfair Trade Practices Act (FDUTPA), New

20

Jersey's Consumer Fraud Act (NJCFA), Arizona Consumer Fraud Act (ACFA), and the
Idaho Consumer Fraud Act (ICFA).
A.

Unjust Enrichment

Whirlpool argues that the Plaintiffs' unjust-enrichment claims fail as a matter of law.
New Jersey, Michigan, and Idaho laws require Plaintiffs to allege that they conferred a
direct benefit on Whirlpool. According to Whirlpool, Limpede, Bliss, Oliarny, and Miljenovic
failed to allege that they purchased their ovens directly from Whirlpool and fail to meet the
requirement. Plaintiffs concede the point as to the New Jersey and Idaho Plaintiffs, but
dispute that Michigan law requires a direct benefit. Resp. 37, ECF No. 23. In support,
Plaintiffs assert that "Michigan law does not require a benefit to be conferred directly by
plaintiff to a defendant." Id. (quoting In re Auto. Parts Antitrust Litig., No. 12-MD-02311,
2014 WL 2993753, at *31 (E.D. Mich. July 3, 2014) (citing Kammer Asphalt Paving Co. v.
E. China Twp. Sch., 504 N.W.2d 635, 641 (Mich. 1993))).
Whirlpool argues that the Auto Parts court reached an unjustifiable result based on
Kammer, which is a factually distinguishable case. "Customarily, [Michigan] courts only
employ the doctrine of unjust enrichment in cases where the defendant directly receives
a benefit from the plaintiff." Smith v. Glenmark Generics, Inc., USA, No. 315898, 2014 WL
4087968, at *1 (Mich. Ct. App. Aug. 19, 2014); see also Belle Isle Grill Corp. v. City of
Detroit, 666 N.W.2d 271, 280 (Mich. App. 2003) (holding that a claim for unjust enrichment
requires "the receipt of a benefit by defendant from plaintiff"); Storey v. Attends Healthcare
Prod., Inc., No. 15-CV-13577, 2016 WL 3125210, at *12 (E.D. Mich. June 3, 2016)
("Ordinarily, a plaintiff can establish the first element of the unjust enrichment claim only by
proof that the plaintiff directly conferred a benefit on the defendant.").

21

Auto Parts's reliance on Kammer was misplaced. In Kammer, the plaintiffs were
subcontractors who performed substantial work on the defendant school district's buildings,
and they were in privity of contract with the general contractor and not the school district.
504 N.W.2d at 641. Although the Kammer court noted that "plaintiff indirectly provided
defendant a benefit," id., "the defendant and the plaintiff were in direct contact with one
another while the plaintiff performed work at facilities owned by the defendant and the facts
clearly show that the defendant benefited directly from the plaintiff's work." Smith, 2014 WL
4087968, at *1. So "[a]lthough Michigan courts have permitted unjust enrichment claims
to proceed when a subcontractor indirectly conferred a benefit by performing work projects
on a defendant's building, the Michigan Supreme Court has limited this exception to when
the defendant and plaintiff had some sort of direct interaction." Storey, 2016 WL 3125210,
at *12. Thus, to state a claim for unjust enrichment, Michigan law requires a direct benefit
or some sort of direct interaction between Plaintiffs and Whirlpool. Id. Plaintiffs allege
neither. Accordingly, the Court will dismiss with prejudice the unjust enrichment claims of
Limpede, Bliss, Oliarny, and Miljenovic.
Additionally, Whirlpool argues that the unjust enrichment claims of all Plaintiffs (except
Schechner and Barnes) should be dismissed because Idaho, New Jersey, New Mexico,
Arizona, and Michigan state law bars unjust enrichment claims when an adequate remedy
at law exists. Plaintiffs counter that unjust enrichment claims may be pled in the alternative
under Federal Rule of Civil Procedure 8(d). The Court need only address the motion as to
Simmons and the Thomes because the unjust enrichment claims of Plaintiffs Limpede,
Oliarny, Miljenovic, and Bliss fail to state claims on other grounds.

22

At the outset, the Court must resolve a conflict-of-law issue. Under Rule 8(d)(2), a
"party may set out 2 or more statements of a claim or defense alternatively or
hypothetically, either in a single count or defense in separate ones." Federal procedural
rules "recognize that a person may not be sure in advance upon which legal theory she will
succeed, and so permit parties to 'set forth two or more statements of a claim or defense
alternately or hypothetically,' and to 'state as many separate claims or defenses as the
party has regardless of consistency.'" Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795,
805 (1999) (quoting Fed. Rule Civ. Proc. 8(e)(2)). But here, Whirlpool argues that Arizona
and New Mexico substantive state law precludes an unjust enrichment claim when an
adequate remedy at law exists. Thus, there is an apparent conflict between federal
procedural rules, which allow alternative pleading generally, and the applicable state law
that may bar a plaintiff from bringing an unjust enrichment claim when a legally adequate
remedy is available.
"A federal rule . . . cannot govern a particular case in which the rule would displace
a state law that is procedural in the ordinary use of the term but is so intertwined with a
state right or remedy that it functions to define the scope of the state-created right." Shady
Grove Orthopedic Assoc. P.A. v. Allstate Ins. Co., 559 U.S. 393, 423 (2010) (Stevens, J.,
concurring.). And when a federal rule would "abridge, enlarge, or modify a substantive
right," then "federal courts cannot apply the rule." Id. (citing 28 U.S.C. § 2072(b)). Here,
state law regarding the availability of an unjust enrichment claim is so intertwined with a
substantive right under state law that Rule 8's alternative pleading provision may not be
enforced. Therefore, the Court may not allow Plaintiffs to plead unjust enrichment if the
state-court would prohibit the same, despite the permissive nature of Rule 8.

23

Turning to Simmons's claim, under New Mexico law "[a]s a general rule, 'equity will
not act if there is a complete and adequate remedy at law.'" Steadfast Ins. Co. v. Legacy
Safety & Consulting, LLC, No. CV 15-00218 WJ/CG, 2015 WL 12803775, at *3 (D.N.M.
June 25, 2015) (quoting Sims v. Sims, 930 P.2d 153, 159 (N.M. 1996)). In Steadfast, the
Court dismissed an unjust enrichment claim because the plaintiff had a "complete and
adequate remedy at law" through a breach of contract claim. Id.; see also Elliott Indus. Ltd.
P'ship v. BP Am. Prod. Co., 407 F.3d 1091, 1117 (10th Cir. 2005) (affirming summary
judgment on plaintiff's unjust enrichment claim because the parties were in privity of
contract).
Plaintiffs argue, however, that New Mexico law "explicitly provides for alternative
pleading of civil claims" including unjust enrichment. Starko, Inc. v. Presbyterian Health
Plan, Inc., 2012-NMCA-053, 276 P.3d 252, 278 (N.M. Ct. App. 2011), rev'd sub nom.
Starko, Inc. v. New Mexico Human Servs. Dep't, 2014-NMSC-033, 333 P.3d 947 (N.M.
2014); see also Auge v. Stryker Corp., No. 14-1089 KG/SMV, 2016 WL 3567047, at *8
(D.N.M. May 5, 2016) (permitting the plaintiff to plead unjust enrichment as an alternative
to state-law claims).
Whirlpool's cited authorities are inapposite. In both Steadfast and Elliot, the courts'
holdings relied on the fact that privity of contract existed between the plaintiff and
defendant. The Elliot court noted that the parties were in privity of contract and that "the
presence of a contract bars a claim for unjust enrichment." 407 F.3d at 1117. But here, no
privity of contract exists between Simmons and Whirlpool. And the Steadfast court noted
that "statutory remedies are not typically interpreted as supplanting existing equitable
remedies." 2015 WL 12803775, at *4. Neither the UCC nor the MMWA explicitly supplant

24

equitable remedies. Therefore, under New Mexico law, Plaintiff Simmons may plead unjust
enrichment. Accordingly, the Court will deny Whirlpool's motion to dismiss Simmons's
unjust enrichment claim.
Regarding the Thomes, Whirlpool relies on Firetrace USA, LLC v. Jesclard, 800 F.
Supp. 2d 1042, 1052 (D. Ariz. 2010) to support an argument that Arizona law bars a claim
for unjust enrichment when an adequate legal remedy exists. See Mot. 23, n.11, ECF No.
11. But Firetrace is inapposite. The Firetrace court held that when "there is a specific
contract which governs the relationship of the parties, the doctrine of unjust enrichment has
no application." Id. (quotations omitted). The other authority cited by Whirlpool, Gustafson
v. Goodman Mfg. Co. LP, mentions in dicta that "because interpretation of Goodman's
Limited Warranty controls this matter, unjust enrichment is not an app licable [sic] legal
theory." No. CV-13-08274-PCT-JAT, 2016 WL 1029333, at *4, n.9 (D. Ariz. Mar. 14, 2016).
In response, Plaintiffs quote Lopez v. Musinorte Entm't Corp, 434 F. App'x 696, 699
(9th Cir. 2011): "[u]nder Arizona law, a plaintiff can pursue an unjust enrichment claim as
an alternative theory of recovery in conjunction with a breach of contract claim[.]" See
Resp. 36, ECF No. 23. Here, unlike in Firetrace, no specific employment contract governs
the relationship between Plaintiffs and Whirlpool and no privity of contract exists. And the
Court is not bound by the dicta in Gustafson. As a result, the Court will deny Whirlpool's
motion to dismiss the unjust enrichment claim of the Thomes.
B. Florida Deceptive and Unfair Trade Practices Act Claim
Whirlpool

argues

that

Plaintiffs

Schechner's

and

Barnes's

state-law

consumer-protection claims should be dismissed because they do not plead ascertainable
losses with specificity. Mot. 27–28, ECF No. 11 (citing In re Caterpillar, Inc., C13 & C15

25

Engine Prod. Liab. Litig., No. 1:14-CV-3722 JBS-JS, 2015 WL 4591236, at *39 (D.N.J. July
29, 2015)). In Caterpillar, a federal court dismissed a claim under the Florida Act because
"[b]eyond conclusory allegations of diminished value, Plaintiffs have not identified this
diminished value with any specificity, nor pleaded facts from which such value could be
calculated." Id.
Plaintiffs respond that Caterpillar was wrongly decided. Resp. 9, ECF No. 23.
Caterpillar and Rollins (the Florida Appeals Court decision upon which Caterpillar was
based) do not "support the conclusion that a FDUTPA claim requires a plaintiff to plead the
price of comparable products in order seek damages under the FDUTPA." Hasemann v.
Gerber Prod. Co., No. 15-CV-2995 (MKB), 2016 WL 5477595, at *22 (E.D.N.Y. Sept. 28,
2016).
Neither the statutory text—nor other relevant cases—support the ascertainable loss
requirement set forth in Caterpillar. Rather, a plaintiff "only need to show that he or she paid
a premium for [the product at issue] to be entitled to damages under the FDUTPA." Id.
(quotations omitted). Schechner and Barnes met the Florida Act's pleading requirements.
The Court will deny Whirlpool's motion to dismiss the Florida Act claims of Schechner and
Barnes.
C. New Jersey Consumer Fraud Act (NJCFA) Claim
Whirlpool argues that under New Jersey law "Plaintiffs must plead specific price
information or provide alternate means of quantifying their loss to allege ascertainable loss
under New Jersey law.'" Mot. 27–28, ECF No. 11 (citing In re Rust-Oleum Restore Mktg.,
Sales Practices & Prod. Liab. Litig., 155 F. Supp. 3d 772, 820 (N.D. Ill. 2016) (holding that
allegations that plaintiffs "would not have purchased [the product] had they known about

26

the defect and that they suffered out of pocket loss as a result" are insufficient to state a
claim). Plaintiffs claim that they have met New Jersey's heightened standard by pleading
specific pricing information and by pleading that they received less value than the retail
price they paid. Resp. 10, ECF No. 23 (citing Am. Compl. ¶¶ 82–84, 132–37 and Exh.
11–13).
Under the New Jersey Act, "[t]he precise amount of loss need not be known, it need
only be measurable." Hoffman v. Liquid Health Inc., No. CIV. 14-01838 SRC, 2014 WL
2999280, at *6 (D.N.J. July 2, 2014) (quotations omitted). "[I]mplicit in the concept of an
ascertainable loss is that it is quantifiable or measurable. Moreover, it need not yet have
been experienced as an out-of-pocket loss to the plaintiff." Thiedemann v. Mercedes-Benz
USA, LLC, 872 A.2d 783, 793 (N.J. 2005). At the summary judgment stage, a party must
"produce specific proofs to support or infer a quantifiable loss . . . [S]ubjective assertions
without more are insufficient." Id. At the pleading stage, however, a "Plaintiff must merely
allege that the loss is quantifiable." Durso v. Samsung Electonics Am., Inc., No.
12-CV-5352, 2014 WL 4237590, at *6 (D.N.J. Aug. 26, 2014) ("By alleging that he paid
$549.97 for a washer and that it did not wash a king-size comforter as promised, the
Plaintiff has alleged that he received 'less than what was promised.'") (quoting Theidemann,
872 A.2d 783)).
Here, Miljenovic alleges that the oven's AquaLift "did not work as advertised" and that
she was "dissatisf[ied] with the product." Am. Compl. ¶¶ 136–37, ECF No. 5. The Amended
Complaint also alleges that all Plaintiffs "did not receive any of the 'self-cleaning' benefits
of the AquaLift Ovens." Id. ¶ 6. Plaintiffs seek compensation for "overpayment for a product
advertised to include a self-cleaning function, but did not [and] a decrease in value of their

27

ovens due to the defect." Id. ¶ 8.Plaintiffs also include the retail cost of the oven in the
amended complaint. See Am. Compl. Exh. 12–14, ECF No. 5. Thus, Miljenovic adequately
pled that she "received something less than, and different from, what [she] reasonably
expected in view of defendant's presentations. That is all that is required to establish
'ascertainable loss[.]'" Dzielak v. Whirlpool Corp., 26 F. Supp. 3d 304, 336 (D.N.J. 2014).
Accordingly, the Court will deny Whirlpool's motion to dismiss Miljenovic's New Jersey Act
claim.
D. Idaho Consumer Fraud (ICFA) and Arizona Consumer Fraud (ACFA) Claims
Whirlpool argues that Plaintiffs' Idaho and Arizona Act claims are barred by a 2-year
statute of limitations. Under the Idaho Act "[n]o private action may be brought . . . more than
two (2) years after the cause of action accrues." Idaho Code § 48-619. "The cause of action
accrues, and the statute of limitation begins to run, when a party may sue another."
Galbraith v. Vangas, Inc., 655 P.2d 119, 122 (Idaho Ct. App. 1982).
Plaintiff Limpede bought her oven in December 2012, attempted to use the AquaLift
feature in the spring and summer of 2013 and discovered then that her "oven remained
dirty." Am. Compl. ¶¶ 145, 147, ECF No. 5. She complained to a Maytag representative in
summer of 2013. Id. ¶ 151. Thus, her cause of action accrued in the spring of 2013 and the
two-year statute of limitations elapsed in spring of 2015. Yet she did not file suit until June
of 2016.
Similarly, under Arizona law, "[a] consumer fraud claim must be filed within one year
after the cause of action accrues." Steinberger v. McVey ex rel. Cty. of Maricopa, 318 P.3d
419, 436 (Ariz. Ct. App. 2014) (quotations omitted). "The limitations period begins to run
when the consumer discovers or with reasonable diligence should have discovered both

28

the 'who' and the 'what' of her claim. This occurs when the consumer knows whose
products were involved and that the products were not performing as expected." Cheatham
v. ADT Corp., 161 F. Supp. 3d 815, 826 (D. Ariz. 2016) (quotations and internal citation
omitted). "For this reason, a plaintiff's allegations about the date of discovery must be
accepted as true at the 12(b)(6) stage, and a claim should not be dismissed as untimely
unless the running of the statute of limitations is apparent on the face of the complaint." Id.
(quotations omitted).
The Thomes allege that they bought their oven in March of 2014, and unsuccessfully
ran the AquaLift feature "in or around November 2014, May 2015, and April 2016. Am.
Compl. ¶¶ 138, 140, ECF No. 5. Thus, the statute began to run in November 2014 when
the Thomes discovered the AquaLift feature "did not work or perform as advertised." Id. ¶
140. The statute of limitations elapsed one year later, in November 2015. The Thomes did
not sue Whirlpool until June 2016.
Plaintiffs argue that "the date when discovery occurred is a question of fact." Resp.
17, ECF No. 23 (quoting Cheatham, 161 F. Supp. 3d at 826). Plaintiffs conclude that the
parties should be allowed to engage in discovery to determine more facts regarding when
the Plaintiffs first knew "that the products were not performing as expected." Id. Plaintiffs
add that Whirlpool and its technicians "repeatedly misled Plaintiffs and the market
regarding AquaLift's inability to perform as advertised" which delayed the Plaintiffs'
discovery of the defect. Id.
Plaintiffs' "allegations about the date of discovery must be accepted as true at the
12(b)(6) stage." Cheatham, 161 F. Supp. 3d at 826. For Limpede, discovery occurred on
the earliest date when she could first have sued, Galbraith, 655 P.2d at 122, in summer

29

2013 when AquaLift failed to clean her oven as advertised. Am. Compl. ¶ 147, ECF No. 5.
And the Thomes knew that AquaLift was not "performing as expected," Cheatham, 161 F.
Supp. 3d at 826, in November, 2014. Am. Compl. ¶ 140, ECF No. 5. Both Limpede and
the Thomes pled facts to show that they discovered a problem with their oven at a specific
time. On the face of the complaint, therefore, and accepting the factual allegations as true,
both claims are barred by the respective states' statutes of limitations. Accordingly, the
Court will dismiss without prejudice Limpede's Idaho Act claim and the Thomes's Arizona
Act claim.
ORDER
WHEREFORE it is hereby ORDERED that Defendant Whirlpool's Motion to
Dismiss [11] is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that:
•

Count I - The MMWA written warranty claims of Plaintiffs Simmons, the Thomes,
Barnes, Bliss, Miljenovic, and Limpede arising under Whirlpool's one-year limited
warranty are DISMISSED without prejudice. All Plaintiffs' MMWA written warranty
claims alleging that Whirlpool's advertisements created an affirmation-of fact
written warranty are DISMISSED with prejudice.

•

Count II - The MMWA implied warranty claims of Plaintiffs Barnes, Simmons,
Oliarny, the Thomes, Schechner, and

Limpede

are DISMISSED without

prejudice.
•

Count III - All Plaintiffs' breach of contract claims are DISMISSED with prejudice.

•

Count IV - The express UCC warranty claims of Plaintiffs Barnes, Simmons,
Oliarny, the Thomes, and Schechner are DISMISSED without prejudice.
30

•

Count V - The UCC implied warranty claims of Plaintiffs Barnes, Simmons,
Oliarny, the Thomes, Schechner, and Limpede are DISMISSED without prejudice.

•

Count VI - The unjust enrichment claims of Plaintiffs Limpede, Bliss, Oliarny, and
Miljenovic are DISMISSED with prejudice. Whirlpool's motion to dismiss the unjust
enrichment claims of Plaintiffs Simmons and the Thomes is DENIED.

•

Count VIII - Whirlpool's motion to dismiss the Florida Deceptive and Unfair Trade
Practices Act claims of Plaintiffs Schechner and Barnes is DENIED.

•

Count IX - Whirlpool's motion to dismiss Plaintiff Miljenovic's New Jersey
Consumer Fraud Act claim is DENIED.

•

Count X - The Arizona Consumer Fraud Act claim of the Thomes Plaintiffs is
DISMISSED without prejudice.

•

Count XI - The Idaho Consumer Protection Act claim of Plaintiff Limpede is
DISMISSED without prejudice.

SO ORDERED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: February 14, 2017
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on February 14, 2017, by electronic and/or ordinary mail.
s/David P. Parker
Case Manager

31