Browe v. Evenflo Company, Inc.

Filing 26

MEMORANDUM OPINION AND ORDER granting 15 Defendant's Motion to Dismiss; the Complaint 1 is DISMISSED (Written Opinion). Signed by Judge Ann D. Montgomery on 06/25/2015. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Sadie Browe,
Plaintiff,
MEMORANDUM OPINION
AND ORDER
Civil No. 14-4690 ADM/JJK

v.
Evenflo Company, Inc.,

Defendant.
______________________________________________________________________________
Kristen G. Marttila, Esq., Lockridge Grindal Nauen PLLP, Minneapolis, MN, on behalf of
Plaintiff.
Cortney G. Sylvester, Esq., Nilan Johnson Lewis PA, Minneapolis, MN, on behalf of Defendant.
_____________________________________________________________________________
I. INTRODUCTION
On April 1, 2015, the undersigned United States District Judge heard oral argument on
Defendant Evenflo Company, Inc.’s (“Evenflo”) Motion to Dismiss [Docket No. 15]. Plaintiff
Sadie Browe opposes the motion. For the reasons set forth below, Evenflo’s motion is granted.
II. BACKGROUND
This is a putative class action for purchasers of child car seats which Evenflo
manufactured, distributed, marketed, and sold over a four-year period with a particular seat
harness buckle. The Complaint [Docket No. 1] alleges that the seats are defective in that the
harness buckle is unreasonably difficult or impossible to unlatch during the ordinary consumer
use.
In early 2014, the Office of Defects Investigation (“ODI”) of the National Highway
Traffic Safety Administration initiated an investigation after receiving complaints about the
functionality of the buckles. Compl. ¶ 32. As of February 2014, consumers had filed 18 reports

with the ODI. The reports generally describe consumers’ difficulty in releasing the buckle of the
subject car seats. Some consumers reported that they had to cut the harness’ nylon webbing to
release their child because the buckle was not unlatching.
On April 4, 2014, Evenflo announced a recall of the allegedly defective buckle. In
ordering the recall, Evenflo stated that the subject seats:
use a harness crotch buckle which may become resistant to unlatching over time,
due to exposure to various contaminants (like food and drinks) that are present in
everyday use of the convertible car seat or harnessed booster by toddlers. This
condition may make it difficult to remove a child from the vehicle.
Compl. ¶ 11. Consumers who purchased a seat subject to the recall were eligible to receive a
replacement buckle and instructions for installing the buckle on their existing car seat. Id. ¶ 51
The lead plaintiff, Sadie Browe (“Browe”) is a Minnesota resident who purchased an
Evenflo model Sureride DLX 65 car seat in 2013. This particular model is equipped with the
allegedly defective harness buckle subject to recall. Id. ¶ 17. Shortly after purchasing the seat,
Browe noticed that the buckle was becoming more difficult to unlatch. A few months later, the
release mechanism became significantly more difficult to operate. Browe alleges breaking her
fingernails at least twice while unlatching the buckle. Browe eventually removed the seat from
her vehicle and placed it in her husband’s car so it would be used less frequently. Id. ¶ 48.
The Complaint alleges breaches of the implied warranties of merchantability and fitness
for a particular purpose, a violation of the federal Magnuson-Moss Warranty Act, and two causes
of action arising from Minnesota statutes protecting against deceptive trade practices and false
statements in advertising. Evenflo moves to dismiss the Complaint in its entirety.

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III. DISCUSSION
A. Motion to Dismiss Standard
Rule 12 of the Federal Rules of Civil Procedure states that a party may move to dismiss a
complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
The court construes the pleadings in the light most favorable to the nonmoving party, and the
facts alleged in the complaint must be taken as true. Hamm v. Groose, 15 F.3d 110, 112 (8th
Cir. 1994).
Working in combination with Rule 8, Rule 12 requires the plaintiff’s factual allegations
to “raise a right to relief above the speculative level,” and push claims “across the line from
conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). In other
words, the complaint must establish more than a “sheer possibility that a defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
However, a court “must not presume the truth of legal conclusions couched as factual
allegations,” and should “dismiss complaints based on ‘labels and conclusions, and a formulaic
recitation of the elements of a cause of action.’” Hager v. Ark. Dept. of Health, 735 F.3d 1009,
1013 (8th Cir. 2013) (quoting, in part, Twombly, 550 U.S. at 555); see also Retro TV Network,
Inc. v. Luken Commc’ns, LLC, 696 F.3d 766, 769 (8th Cir. 2012) (“Conclusory statements and
naked assertion[s] devoid of further factual enhancement are insufficient.”) (quotations and
alterations omitted).

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B. Warranty Claims
1. The Express Limited Warranty
Evenflo first argues that Browe’s state law warranty claims are precluded by Evenflo’s
express limited warranty, which warrants the subject car seat against defects in material or
workmanship for 90 days. See Neff Aff. [Docket No. 18] Ex. A (“Limited Warranty”). Evenflo
avers that since the Limited Warranty disclaims all implied warranties, it acts to preclude
Browe’s merchantability and fitness for a particular purpose warranty claims. Browe responds
that the Limited Warranty is a material outside of the pleadings and must not be considered on
the present motion to dismiss.
When considering a Rule 12 motion, the court generally must ignore materials outside
the pleadings, but it may consider “some materials that are part of the public record or do not
contradict the complaint.” Thunander v. Uponor, Inc., 887 F. Supp. 2d 850, 859 n.1 (D. Minn.
2012) (citing Mo. ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102, 1107 (8th Cir. 1999),
cert. denied, 527 U.S. 1039 (1999)). A court may also consider materials that are “necessarily
embraced by the pleadings.” Piper Jaffray Cos., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh,
Pa., 967 F. Supp. 1148, 1152 (D. Minn. 1997).
In Thunander, the district court determined that a memorandum, a marketing and sales
brochure, and express warranties of the defendant were material necessarily embraced by the
pleadings because the complaint either “specifically” referred to or otherwise referenced the
materials. 887 F. Supp. 2d at 859 n.1. Similarly, since the plaintiff in Enervations, Inc. v. Minn.
Mining and Mfg. Co. alleged improper and unlawful termination of a distributor agreement, the
distributor agreement was embraced by the pleadings and properly subject to the court’s analysis

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on a Rule 12 motion despite not being attached as an exhibit to the complaint. 380 F.3d 1066,
1068–69 (8th Cir. 2004).
Courts have discretion in determining whether to consider a matter outside of the
pleadings on a motion to dismiss. See Piper Jaffray Cos., 967 F. Supp. at 1152 (“[T]he Court
may consider”) (emphasis in original); Mo. ex rel. Nixon, 164 F.3d 1102 at 1107 (“Some
materials . . . may be considered by a court in deciding a Rule 12(b)(6) motion to dismiss.”)
(emphasis added). While mindful of the practical considerations that support examining the
Limited Warranty at this juncture, in deciding this motion, the Limited Warranty will be
considered as material outside and not embraced by the pleadings. The Limited Warranty was
submitted by Evenflo in support of its motion. Browe’s Complaint, while asserting breaches of
implied warranties, does not reference, allege, or even suggest any Limited Warranty that may
impact her claims. Indeed, but for Evenflo’s submission, the Court would now know of the
Limited Warranty. For these reasons the Court declines to exercise its discretion and will not
consider the provisions of the Limited Warranty in resolving this motion.
2. Merchantability
Evenflo argues that, even if the Limited Warranty falls outside of the pleadings, Browe’s
warranty claims still fail on the merits. Evenflo argues Browe’s continued use of the allegedly
defective car seat belies her claims that the seat is unmerchantable. Browe responds that a child
car seat with an allegedly defective buckle is inherently unmerchantable and not fit for its
ordinary purpose.
An implied warranty of merchantability requires that the goods be “fit for the ordinary
purposes for which such goods are used.” Minn. Stat. § 336.2-314(2)(c). “This warranty is

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breached when the product is defective to a normal buyer making ordinary use of the product.”
Peterson v. Bendix Home Sys., Inc., 318 N.W.2d 50, 52–53 (Minn. 1982). A buyer seeking to
recover for breach of warranty must establish: “(1) the existence of a warranty; (2) breach of
that warranty; and (3) that the breach caused the alleged harm.” Driscoll v. Standard Hardware,
Inc., 785 N.W.2d 805, 816 (Minn. Ct. App. 2010) (citing Minn. Stat. § 336.2-314(2)(c)).
With respect to the third element, cases alleging merchantability claims under Minnesota
law require alleging either personal or pecuniary injury for the cause of action to proceed. See
e.g., Driscoll, 785 N.W.2d at 809 (alleging death); Peterson, 318 N.W.2d at 52 (alleging rash,
burning eyes, an irritated throat, and a persistent cough); Nelson v. Wilkins Dodge, Inc., 256
N.W.2d 472, 475 (Minn. 1977) (seeking to recover costs of repair for allegedly unmerchantable
truck); see also Chatfield v. Sherwin-Williams Co., 266 N.W.2d 171, 175 (Minn. 1978)
(recognizing that “circumstantial evidence may be sufficient to show the causal relation between
the use of a warranted product and the injury which followed its use.”) (emphasis added). As the
Eighth Circuit has stated:
The O’Neils’ suit rests instead on the same [allegation] as in a traditional products
liability case: the defendant produced or sold a defective product and/or failed to
warn of the product’s dangers. . . . The striking feature of a typical no-injury
class is that the plaintiffs have either not yet experienced a malfunction because
of the alleged defect or have experienced a malfunction but not been harmed by it.
O’Neil v. Simplicity, Inc., 574 F.3d 501, 504 (8th Cir. 2009) (quoting Coghlan v. Wellcraft
Marine Corp., 240 F.3d 449, 455 n.4 (5th Cir. 2001) (internal quotation marks omitted,
alterations in original, emphasis added)).
Browe has failed to allege that she suffered a sufficient physical or pecuniary injury to

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sustain her merchantability claim.1 The only physical injury Browe avers is broken fingernails.
See Compl. ¶ 48. Her pecuniary injury is similarly lacking. Browe does not allege that the
defect caused her to cut the seat’s nylon straps or otherwise render the seat unusable.2 Nor does
Browe allege purchasing a new child seat to replace the allegedly defective seat. Significantly,
Browe admits her family continues to transport their child in the seat that has the allegedly
defective safety component.
The Court is especially troubled by this last uncontested fact. It is a difficult proposition
to accept that the lead plaintiff in a products liability lawsuit seeking class action status can
credibly pursue liability while continuing to use the very same product the lawsuit claims is
dangerously defective and warrants a pecuniary remedy. This is especially true here. The
alleged defect is not merely cosmetic or a defect which reduces the product’s promised
performance. Rather, the alleged buckle defect implicates the safety of a child. Indeed, the
severity of the potential injury causally related to the buckle is repeatedly recited as a concern in
Browe’s Complaint and in her brief opposing the motion. This concern is hollow in the face of
Browe’s admitted continued use of the seat for her child. Had Browe ceased using the seat, the
result may be different. See In re Bisphenon-A (BPA) Polycarbonate Plastic Prod. Liab. Litig.,
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For purposes of this motion, only Browe’s claims, and not those of any potential class
member, are considered. See Cheng v. BMW of N. Am., LLC, No. 12-9262, 2013 WL 3940815,
at *4 (C.D. Cal. July 26, 2013) (“[I]n ruling on a motion to dismiss a class action prior to class
certification, courts generally consider only the claims of the named plaintiff.”) (citing Speyer v.
Avis Rent a Car Sys., Inc., 415 F. Supp. 2d 1090, 1094 (S.D. Cal. 2005); Barth v. Firestone Tire
and Rubber Co., 673 F. Supp. 1466, 1476 (N.D. Cal. 1987)). Browe does not present any
argument opposing this proposition.
2

The Complaint includes 53 customer complaints submitted to the ODI alleging
difficulty in unlatching the buckle. See Compl. ¶ 36. At least two of these complaints describe
destroying the product so that a child could be removed from the seat, but Browe does not allege
she had to do this.
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687 F. Supp. 2d 897, 912 (W.D. Mo. 2009) (“[T]he Plaintiffs . . . purchased a product they
alleged they would not have purchased had they known the true facts. Now that they know the
true facts, they are unwilling to risk allowing their children to use the product. They cannot
obtain the intended bargain or benefit from the goods, so they incurred damages.”).3 Having
failed to allege that she suffered an injury causally related to the alleged defect, Browe’s claim
arising from the implied warranty of merchantability fails as a matter of law.
3. Fitness for a particular purpose
Browe also argues that Evenflo breached the implied warranty of fitness for a particular
purpose, Minn. Stat. § 336.2-315. Contrary to the implied warranty of merchantability, which
warrants that the product is reasonably fit for the ordinary purpose for which it is manufactured
and sold, the implied warranty of fitness for a particular purpose promises that the product is fit
for a particular purpose, or something other than an ordinary purpose. See Official Comment 2
to Minn. Stat. § 336.2-315. Breach of this implied warranty requires proof that: “(1) the seller
had reason to know of the buyer’s particular purpose; (2) the seller had reason to know that the
buyer was relying of the seller’s skill or judgment to furnish appropriate goods; and (3) the
buyer’s actual reliance.” Driscoll, 785 N.W.2d at 817.
The Complaint does not allege Browe used or attempted to use the car seat in any manner
that can be fairly categorized as particular or anything other than ordinary or normal. Nor does
the Complaint allege that Browe communicated an intended particular purpose to Evenflo
directly or to Evenflo through a third party. Without these facts, Browe cannot recover under the
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It is also concerning that Browe did not avail herself of Evenflo’s recall. Browe asserts
that the recall provided an incomplete or ineffective remedy. However, the Court questions how
Browe can make these factual determinations without having attempted to participate in the
recall.
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implied warranty of fitness for a particular purpose.
4. Magnuson-Moss Warranty Act
Browe’s last warranty claim arises under the federal Magnuson-Moss Warranty Act
(“MMWA”), 15 U.S.C. §§ 2301, et seq. The MMWA provides that “a consumer who is
damaged by the failure of a supplier, warrantor, or service contractor to comply with any
obligation under this chapter, or under a written warranty, implied warranty, or service contract,
may bring suit for damages and other legal and equitable relief.” 15 U.S.C. § 2310(d)(1). The
MMWA does not impose any new warranty obligations. Id. § 2301(7). Rather, “[t]he [MMWA]
provides a federal cause of action for state law express and implied warranty claims.” In re
Toyota Motor Corp., 754 F. Supp. 2d 1145, 1188 (C.D. Cal. 2010); see also IWOI, LLC v.
Monaco Coach Corp., 581 F. Supp. 2d 994, 999 (N.D. Ill. 2008) (“The Act does not create
implied warranties, but instead confers federal court jurisdiction for state law breach of implied
warranty claims.”).
Browe’s MMWA claim must be dismissed because it lacks the requisite predicate state.
Without a warranty claim arising under state law for foundation, Browe’s MMWA claim fails.
C. Deceptive Trade Practices and False Statement in Advertising
Browe’s final causes of action allege claims arising from two Minnesota consumer
protection statutes: the Unlawful Trade Practices Act (“UTPA”), Minn. Stat. § 325D.13, and the
Minnesota Consumer Fraud Act (“CFA”), Minn. Stat. § 325F.67. Browe avers Evenflo violated
the UTPA by misrepresenting the quality of the car seat and representing that the seats have uses
and benefits that they do not have. Browe avers Evenflo violated the CFA by warranting their
product with false statements regarding the functionality of the car seat, such as it is “easy to get

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your child in and out of the seat” and the seat “makes getting your child in and out a breeze.”
Compl. ¶ 103. Evenflo challenges the propriety of these causes of action on a number of
grounds, including that the allegedly unlawful statements are puffery and are not actionable.
Evenflo characterizes the statements as “classic sales talk.” Def.’s Mem. Supp. Mot. Dismiss
[Docket No. 17] 25. Browe disagrees with Evenflo’s assessment and argues that the statements
are actionable, factual claims. Browe argues the statements relate to the specific action of
removing a child from the seat, rather than generalized statements of quality or superiority.
Assuming without deciding that Browe’s claims plead a public benefit under Minnesota’s
Private AG Statute, Minn. Stat. § 8.31, Browe’s UTPA and CFA claims fail because the
challenged statements are inherently immeasurable and are therefore puffery.
“Puffery exists in two general forms: (1) exaggerated statements of bluster or boast upon
which no reasonable consumer would rely; and (2) vague or highly subjective claims of product
superiority, including bald assertions of superiority.” Am. Italian Pasta Co. v. New World Pasta
Co., 371 F.3d 387, 390–91 (8th Cir. 2004). While puffery cannot provide a basis for relief,
claims that are “specific and measurable . . . [and] capable of being proved false or of being
reasonably interpreted as a statement of objective fact” are actionable. Coastal Abstract Serv.,
Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 731 (9th Cir. 1999). “False descriptions of
specific or absolute characteristics of a product and specific, measurable claims of product
superiority based on product testing are not puffery and are actionable.” United Indus. Corp. v.
Clorox Co., 140 F.3d 1175, 1180 (8th Cir. 1998).
The statements identified by Browe are not “specific, measurable claim[s] and cannot be
reasonably interpreted as an objective fact.” Am. Italian Pasta Co., 371 F.3d at 391 (internal

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quotation marks omitted). “Easy to get your child in and out of the seat” does not provide the
requisite degree of specificity to make the statement actionable. “Easy” is subjective, vague, and
wholly dependent on an individual’s interpretation, and lacks an empirical benchmark to provide
any indicia of measurability. The same is true for the second statement, “makes getting your
child in and out a breeze.”4 Like “easy,” “breeze” is immeasurable. Browe contends that
customer complaints can serve to verify the veracity of these statements. However, allowing
customer opinion to determine a claim’s benchmark “would subject any advertisement or
promotional statement to numerous variables, often unpredictable, and would introduce even
more uncertainty into the marketplace.” Am. Italian Pasta Co., 371 F.3d at 393. Since the
claims cannot be objectively measured, interpreting the statements as objective facts is
unreasonable. Accordingly, the identified statements are puffery and unactionable. Therefore,
Browe’s UTPA and CFA claims are dismissed.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS
HEREBY ORDERED that:
1.

Evenflo Company, Inc.’s Motion to Dismiss [Docket No. 15] is GRANTED; and,

4

The Court’s inquiry is limited to the two quoted statements identified in the Complaint:
the seats are “easy to get your child in and out of the seat” and the seats “make[] getting your
child in and out a breeze.” Compl. ¶ 103. Both Browe’s consumer protection causes of action
aver that Evenflo engaged in deception. These causes of action sound in fraud and must meet
Rule 9's heightened pleading standard. See Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a
party must state with particularity the circumstances constituting fraud or mistake.”). The only
allegations pled with sufficient particularity are these two statements. While the Complaint
includes additional general allegations, such as Evenflo “engag[ed] in other fraudulent or
deceptive conduct” and “represent[ed] that the subject seats are of a particular standard of quality
or grade that they are not,” these bald allegations fall below the particularity standard of Rule 9
and will not be considered.
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2.

The Complaint [Docket No. 1] is DISMISSED.

LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: June 25, 2015.

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