Anderson et al v. Fibertec, Inc et al
Filing
63
ORDER granting in part 39 44 Motions for Judgment on the Pleadings. IT IS HEREBY ORDERED THAT: 1. Defendants' motions for judgment on the pleadings [39, 44] are GRANTED IN PART as follows: a. Counts I, III, IV (breach of implied warr anty of fitness for particular purpose), V, and VI are DISMISSED WITH PREJUDICE. b. Counts II, IV (rejection of delivery right to full replacement), and VII are DISMISSED WITHOUT PREJUDICE. 2. Because all claims of plaintiffs have been dismissed, all cross-claims are DISMISSED WITHOUT PREJUDICE. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by Judge Patrick J. Schiltz on 11/4/2019. (CLG)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
DEAN R. ANDERSON and DEBBI J.
ANDERSON,
Case No. 18‐CV‐1672 (PJS/LIB)
Plaintiffs,
v.
ORDER
1399557 ONTARIO LTD.,1 a/k/a Fibertec
Windows & Doors, Mfg., a/k/a Fibertec,
Inc.; ABOVE AND BEYOND
CONSTRUCTION INC.; ARLO COOK;
and E SHIP ONE INC.,
Defendants.
Jordan W. Anderson, PARKER & WENNER, P.A., for plaintiffs.
Bryan R. Battina and Nicholas N. Sperling, TREPANIER MACGILLIS
BATTINA, P.A., for defendant 1399557 Ontario LTD.
Kurt M. Mitchell and Kayla J. Giese, HELLMUTH & JOHNSON, PLLC, for
defendants Above and Beyond Construction Inc. and Arlo Cook.
Plaintiffs Dean and Debbi Anderson bought nearly $100,000 worth of windows
from defendant Arlo Cook and his company, defendant Above and Beyond
Construction (“Above & Beyond”). The windows were manufactured by defendant
1
The name of this defendant is misspelled as “1399557 Onterio Ltd.” in the
amended complaint and other papers filed by the parties (including the papers filed by
1399557 Ontario Ltd.’s own attorney). The Court will use the correct spelling in this
order and direct the Clerk to correct the case caption.
1399557 Ontario Ltd. (“Fibertec”) and were advertised to include a “Lifetime
Warranty.” Over three‐and‐a‐half years after the windows were installed, the
Andersons noticed a problem with the windows’ transparency. The problem persisted,
and eventually the Andersons complained to Fibertec. Relying on the terms of its
“Limited Lifetime Warranty,” Fibertec offered to replace the glass in the windows, but
refused to pay shipping or installation costs. This did not satisfy the Andersons, so they
filed this lawsuit. Fibertec, Above & Beyond, and Cook now move for judgment on the
pleadings as to all claims brought against them.2
Unfortunately, the Andersons have taken a kitchen‐sink approach in pursuing
this case. See Gurman v. Metro Hous. & Redevelopment Auth., 842 F. Supp. 2d 1151, 1153
(D. Minn. 2011) (“This Court has repeatedly criticized the filing of ‘kitchen‐sink’ or
‘shotgun’ complaints—complaints in which a plaintiff brings every conceivable claim
against every conceivable defendant.”). In their amended complaint, the Andersons
asserted multiple breach‐of‐warranty and fraud claims—some borderline
frivolous—against each of the defendants. They attempted to add more theories in their
brief. And they attempted to add yet more theories at oral argument. What the
Andersons have failed to do is to plead a single viable claim against any of the
2
There is also a claim pending against defendant E Ship One, which has yet to
make an appearance in this case. See ECF No. 22 at ¶¶ 153‐59. For the sake of
convenience, the Court will refer to the three moving defendants collectively as the
“defendants.”
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defendants. Thus, the Court dismisses all of the Andersons’ claims, most with
prejudice, but some without.
I. BACKGROUND
The Andersons’ amended complaint alleges the following:
In the summer of 2010, the Andersons began designing a lake home to be built in
Alexandria, Minnesota. ECF No. 22 at ¶ 12. The home was designed so that a “majority
of the windows would provide scenic views, including a two‐story vista at the center of
the house with a grand bank of windows facing southeast.” Id. at ¶ 14. The Andersons
wanted all of the windows to have “good insulation” and the windows on the south
side of the home to have “the ability to let in solar heat in the winter.” Id. at ¶ 15. While
the Andersons were designing their new home, they attended the Minneapolis Home
and Garden Show. Id. at ¶ 18. At the Home and Garden Show, the Andersons stopped
at a booth belonging to Above & Beyond and talked to Arlo Cook. See id. at ¶¶ 9, 19.
Cook informed the Andersons that Above & Beyond was “the exclusive
distributor” in the area for windows manufactured by Fibertec. ECF No. 22 at ¶ 20. He
gave the Andersons “glowing reports” about “the integrity of Fibertec” and “the quality
of their product,” and “assured” the Andersons “that Fibertec had been a fantastic
company to work with.” Id. at ¶ 21. Cook also told the Andersons that:
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C
Fibertec windows have “high value and quality . . . fiberglass frames,” and
an “amazing seal and low air infiltration qualities.” Id. at ¶ 22.
C
“[T]est results” showed that Fibertec windows “have excellent insulation
‘U‐value’” and “have the ability to take in radiant solar heat in the winter
while blocking the UV rays which cause[] fading of fabrics, flooring, and
rugs inside the Home.” Id. at ¶ 24.
C
“[T]he ‘e coatings’ that Fibertec ha[s] on their window[s]” will “prolong
the life and quality of the windows and give great energy effeciency [sic].”
Id. at ¶ 26.
C
Fibertec windows’ “triple pane glass” design has “great benefits,” and
Fibertec windows are “the type of windows [that the Andersons] need[] to
meet their needs.” Id. at ¶ 25.
C
Fibertec “had an excellent reputation when it came to replacement of
broken or failed sealed glass units even replacing a unit or two at no
charge if they were accidently [sic] broken during installation.” Id. at ¶ 27.
Cook also provided the Andersons with the following one‐page promotional
flyer:
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ECF No. 22 at ¶ 37; ECF No. 22‐1.
In the winter of 2011, the Andersons placed an order with Above & Beyond for
$97,738.43 worth of Fibertec windows. ECF No. 22 at ¶¶ 29, 48, 115. The Andersons
hand delivered a check to Cook, but Cook did not provide them with a written contract
or a copy of Fibertec’s Limited Lifetime Warranty. Id. at ¶¶ 31‐32. Instead, the
Andersons were given a copy of the order form that Above & Beyond sent to Fibertec.
Id. at ¶ 33. That form simply listed the windows’ specifications, such as “the size, e‐
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glass treatments, [and] design and product information.” Id. The Andersons’ windows
were delivered and installed in April 2011. Id. at ¶ 39.
In November 2014—more than three‐and‐a‐half years later—the Andersons “first
noticed . . . that the windows appeared to be either cloudy or dirty.” ECF No. 22 at ¶ 40.
The Andersons “had the windows professionally cleaned, which improved the
[problem].” Id. at ¶ 41. Still, over the next couple of years, the Andersons continued to
notice problems with the windows’ transparency, and twice more had them
professionally cleaned. Id. at ¶¶ 42‐45. During the final cleaning (in July 2016), “the
professional window washer indicated that he was positive that the window units were
failing,” pointing out “that the clouding and condensation was in fact between the
panes of glass.” Id. at ¶ 45.
This prompted Dean Anderson to contact Fibertec. ECF No. 22 at ¶¶ 45‐46.
Anderson initially spoke to Marcia Brooks, who was apparently a customer‐service
representative. Id. at ¶ 46. Brooks advised Anderson that Fibertec had become aware of
a problem with the seals of windows produced during the “time‐frame” in which the
Andersons purchased their windows. Id. at ¶ 48. She explained that Fibertec would
fabricate replacement windows for the Andersons, but she made no representations
regarding shipping or installation costs. Id. at ¶ 51. Brooks also explained that because
the replacement windows needed to be manufactured—and because the replacement
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windows could not be installed in temperatures below 50 degrees (and autumn was fast
approaching)—it was unlikely that the replacement windows could be installed before
spring. Id. at ¶ 52. The Andersons agreed to wait until spring. Id. at ¶ 53.
Sometime in the spring or summer of 2017, Brooks arranged a call between
Anderson and Zion Knafo (the General Manager of Fibertec). See ECF No. 22 at ¶ 60.
Knafo informed Anderson that Fibertec would provide replacement glass for all of the
Andersons’ windows under Fibertec’s Limited Lifetime Warranty. Id. at ¶ 62. But, said
Knafo, under the terms of that warranty, shipping and installation costs were no longer
included, as those expenses were covered for only two years after delivery, and as the
Andersons’ windows had been delivered six years earlier. Id. at ¶¶ 62‐63; ECF No. 22‐2.
The Andersons had never been given a copy of the Limited Lifetime Warranty and saw
it for the first time on July 11, 2017, when Cook emailed a copy. ECF No. 22 at ¶ 68.
Later that July, the Andersons made arrangements with Fibertec to have their
glass replaced under the Limited Lifetime Warranty. ECF No. 22 at ¶ 70. Fibertec told
the Andersons that it would take four to six weeks to deliver the new glass—meaning
that delivery would likely occur in August 2017. Id. at ¶ 72. August came and went, as
did September, and finally in October Fibertec notified the Andersons that the
replacement glass was ready to ship. Id. at ¶ 77. But because the glass could not be
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installed in temperatures below 50 degrees, the Andersons informed Fibertec that it
should not deliver the glass until spring. Id. at ¶¶ 76, 78‐79.
On May 24, 2018, the replacement glass was delivered to the Andersons’ home
by defendant E Ship One. ECF No. 22 at ¶ 103. When the glass arrived, though, “over
15% of the . . . units were visibly damaged.” Id. at ¶ 106. The Andersons notified
Fibertec that, because some of the units were defective, they were rejecting all of the
units. Id. at ¶ 112. About three weeks later, the Andersons filed this action. See ECF
No. 1. The Andersons bring various breach‐of‐warranty and fraud claims against
various defendants. See ECF No. 22. Defendants Above & Beyond, Cook, and Fibertec
move for judgment on the pleadings on all claims. ECF No. 39; ECF No. 44.
II. ANALYSIS
A. Standard of Review
In reviewing a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c),
a court applies the same standard used in reviewing a motion to dismiss for failure to
state a claim under Fed. R. Civ. P. 12(b)(6). Ashley Cty. v. Pfizer, Inc., 552 F.3d 659, 665
(8th Cir. 2009). Under this standard, the court must accept as true all of the factual
allegations in the complaint and draw all reasonable inferences in the plaintiffs’ favor.
Id. Although the factual allegations in the complaint need not be detailed, they must be
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sufficient “to raise a right to relief above the speculative level . . . .” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citation omitted).
Ordinarily, if the parties present, and the court considers, matters outside of the
pleadings, the motion must be treated as a motion for summary judgment. Fed. R. Civ.
P. 12(d). But the court may consider materials that are necessarily embraced by the
complaint, as well as any exhibits attached to the complaint, without converting the
motion into one for summary judgment. Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697
n.4 (8th Cir. 2003). In this case, the Court will consider two documents that are attached
to the Andersons’ amended complaint and whose authenticity is not disputed: the one‐
page promotional flyer that Cook gave them at the Home and Garden Show and
Fibertec’s Limited Lifetime Warranty.
B. Warranty Claims
The Andersons bring various breach‐of‐warranty claims against various
defendants.3 Notably, the Andersons do not argue that Fibertec breached its Limited
Lifetime Warranty. Instead, the Andersons argue that they are protected by additional
warranties, and that defendants have breached those warranties. In arguing that these
3
The Andersons have not been clear about which defendants they believe made
(or “adopted”) which alleged warranties. Because the Court concludes that none of the
statements on which the Andersons rely—including Cook’s oral statements and the
flyer—provide any relevant warranty, the Court need not decide which defendants
made or “adopted” which alleged warranties.
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additional warranties exist, the Andersons rely on various statements that Cook made
to them at the Home and Garden Show and on the one‐page promotional flyer that
Cook gave them. The Andersons argue that Cook’s oral statements and the flyer
establish a “full” warranty that entitles them to better remedies than Fibertec’s Limited
Lifetime Warranty. Specifically, the Andersons contend that: (1) the flyer is a “written
warranty” under the Magnuson‐Moss Warranty Act (“MMWA”); (2) the flyer and
Cook’s oral statements are express warranties under state law; and (3) various implied
warranties automatically arose under state law. According to the Andersons, every one
of these many warranties were breached by one or more defendants.
The Court disagrees. For the reasons explained below, the Court finds that
neither Cook’s statements nor the flyer provide the Andersons with any relevant
warranty. Specifically, the flyer is not a written warranty under the MMWA, and
neither Cook’s statements nor the flyer provide any relevant express warranty under
state law. Moreover, although the Andersons may have had claims for breach of
implied warranties, those claims are now barred by the statute of limitations. The
Andersons are protected only by the Limited Lifetime Warranty that Fibertec has not
been accused of breaching and that Fibertec continues to be willing to honor.
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1. Magnuson‐Moss Warranty Act: Breach of a “Written Warranty”
The Andersons first argue that Fibertec and Above & Beyond created and
breached a “written warranty” under the MMWA. Specifically, the Andersons claim
that the one‐page promotional flyer that Cook handed to them at the Home and Garden
Show is a “written warranty” for purposes of the MMWA.
Under the MMWA, a warrantor creates a “written warranty” when it provides a
buyer with any of three things with respect to a product: (1) a written affirmation or
promise that the product’s “material or workmanship is defect free”; (2) a written
affirmation or promise that the product “will meet a specified level of performance over
a specified period of time”; or (3) a written undertaking “to refund, repair, replace, or
take other remedial action with respect to such product in the event that such product
fails to meet the specifications set forth in the undertaking.” See 15 U.S.C. § 2301(6)(A)‐
(B).3
3
The Andersons argued at the hearing that the MMWA’s definition of “written
warranty” does not serve as a limitation on what constitutes a warranty under the
MMWA. That, however, is exactly what it does. See, e.g., Skelton v. Gen. Motors Corp.,
660 F.2d 311, 322 (7th Cir. 1981) (rejecting the argument that “written warranty” should
be construed more broadly than the “single, precise meaning” that Congress provided
in its statutory definition); In re ConAgra Foods Inc., 908 F. Supp. 2d 1090, 1102 (C.D. Cal.
2012) (stating that “[c]ourts have declined to extend the term ‘written warranty’ beyond
its statutory definition”(citations omitted)); see also Burgess v. United States, 553 U.S. 124,
129 (2008) (“‘Statutory definitions control the meaning of statutory words . . . in the
usual case.’” (quoting Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 201 (1949))).
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The flyer that Cook provided to the Andersons makes two basic statements,
neither of which meet the MMWA’s definition of “written warranty”:
First, the flyer states that Fibertec “is committed to manufacturing the most
advanced window systems ‘in the world’ at an affordable price.” ECF No. 22‐1. This
statement fails to satisfy any of the MMWA’s three bases for finding a “written
warranty”:
As to the first basis: The statement that Fibertec “manufactur[es] the most
advanced window systems ‘in the world’” does not guarantee a completely defect‐free
product. After all, “the most advanced window systems ‘in the world’” could be like
the most advanced autonomous cars in the world—still riddled with defects.
As to the second basis: The statement that Fibertec windows are “the most
advanced . . . ‘in the world’” does not promise a specified level of performance that the
windows will achieve over a specified period of time. Even assuming that saying the
windows are “the most advanced ‘in the world’” specifies a particular level of
performance (a dubious assumption), there is no time period attached to that level of
performance. See, e.g., Martin v. Monsanto Co., Case No. ED CV 16‐2168‐JFW (SPx), 2017
WL 659014, at *5 (C.D. Cal. Feb. 16, 2017) (finding that statements on bottles of
“Roundup” promising the bottles “Ma[de] Up to” a certain number of gallons of
product were not written warranties under the MMWA because they did not specify a
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period of time); Kelley v. Microsoft Corp., No. C07‐0475MJP, 2007 WL 2600841, at *2‐5
(W.D. Wash. Sept. 10, 2007) (finding statement that a computer was “Windows Vista
Capable” was not a written warranty under the MMWA because the statement did not
specify a period of time).
And finally, as to the third basis: The statement that Fibertec windows are “the
most advanced . . . ‘in the world’” does not promise any sort of remedial action. In sum,
then, the first statement does not qualify as a “written warranty” for purposes of the
MMWA.
The second statement that the flyer makes advertises a “Lifetime Warranty” and
promises that “[e]very window” Fibertec produces “is individually inspected before
shipping. After all, it must last a lifetime!” ECF No. 22‐1. This statement also fails to
satisfy any of the MMWA’s three bases for finding a “written warranty”:
As to the first basis: The statement that the windows are inspected and “must
last a lifetime” does not guarantee a defect‐free product. Saying that windows are
inspected does not promise that those inspections will detect each and every defect.
And saying that something will “last a lifetime” likewise does not promise consumers
that a product will be completely free of defects. If, say, a sales representative promises
that a car will “last a lifetime,” that is not a promise that the car is free of any defects as
it sits on the showroom floor. The car might have a wire that is loose or a temperature
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gauge that is inaccurate or a seam in the upholstery that is not correctly stitched. These
problems would be “defects,” but they would not be inconsistent with the sales
representative’s promise that the car will “last a lifetime.” Thus, a promise that Fibertec
windows will “last” is not the same thing as a promise that Fibertec windows are
completely free of defects. After all, every human being lasts a “lifetime,” and no
human being is free of defects.
As to the second basis: The statement that the windows “must last a lifetime”
does not promise a specified level of performance that the windows will maintain over
a specified period of time. Even assuming that “last[ing]” is a specified level of
performance (a questionable assumption), the statement does not refer to a specified
period of time. The only period of time advertised is “a lifetime,” but there is no
indication as to whose lifetime. Is it the lifetime of the individual who purchases the
windows? Of the purchaser and any individual who is in privity with her? Of the
purchaser and any individual who buys or inherits the house in which the windows are
installed? Does “lifetime” refer not to the lifetime of a person, but instead to the lifetime
of the house? Or the lifetime of the company that warrants the windows? Or some
other lifetime?
Promising that something will last a “lifetime” is not the same thing as promising
that something will last for “a specified period of time.” Indeed, the Eighth Circuit has
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recognized the “imprecision” inherent in the term “lifetime,” explaining that while a
“lifetime” warranty does “explicitly extend to the future,” “there may be a fact question
about how long the relevant ‘lifetime’” is. Marvin Lumber & Cedar Co. v. PPG Indus., Inc.,
223 F.3d 873, 880‐81 (8th Cir. 2000). If there is “a fact question” as to “how long” a
“lifetime” is, then obviously “lifetime” is not a “specified period of time.” If “lifetime”
were a specified period of time, the period of time would be specified, and there would
not be “a fact question.”4
Finally, as to the third basis: The flyer does not promise “to refund, repair,
replace, or take other remedial action” in the event that the windows fail to meet
“specifications set forth in the undertaking.” The flyer promises that some sort of
“Lifetime Warranty” exists, but the flyer makes no promise about the duration or content
of that warranty. The flyer does not identify which of the many possible “lifetimes”
marks the duration of the warranty, nor does the flyer say anything specific (or even
general) about what the warranty actually promises. Does the warranty promise to
4
The Andersons’ amended complaint also alleges that they saw “an online and
advertising brochure which stated that Fibertec’s products carry a warranty for
20 years.” ECF No. 22 at ¶ 34. That does not help the Andersons, however, because the
20‐year time period does not appear on the one‐page promotional flyer on which they
rely, and the Andersons have not alleged that the online advertising brochure
independently qualifies as a “written warranty.” See Skelton, 660 F.2d at 312 (holding
that the MMWA provides a federal cause of action only for breaches of “written
warranties,” not for breaches “of ‘all written promises presented in connection with the
sale of a formally warranted product’” (citation omitted)).
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refund the full purchase price in the event that some specification is not met? Only part
of the purchase price? Does the warranty promise that the windows will be replaced?
Repaired? At no cost to the consumer? At some cost to the consumer? The flyer’s use
of the word “warranty” suggests a promise to take some remedial action in some
circumstances, but it does not suggest a promise to take a particular remedial action in
particular circumstances. Cf. In re Scotts EZ Seed Litig., No. 12 CV 4727(VB), 2013 WL
2303727, at *1, 5‐6 (S.D.N.Y. May 22, 2013) (finding that the plaintiffs plausibly pleaded
a written warranty under the MMWA when a product advertised a “No Quibble
Guarantee,” promising consumers that if they “are not satisfied after using this product,
[they] are entitled to get [their] money back. Simply send us the original evidence of
purchase and we will mail you a refund check promptly”).
In sum, while the one‐page promotional flyer tells the reader that some type of
warranty exists, the flyer is not itself a “written warranty” under the MMWA.5
5
The Andersons also include in their amended complaint a count entitled
“Rejection of Delivery, Right to Full Replacement.” See ECF No. 22 at ¶¶ 153‐59. The
Andersons appear to be relying on 15 U.S.C. § 2304(a)(4), the remedies provision of the
MMWA. But § 2304(a)(4) merely provides a remedy for certain breaches; it does not
provide an independent cause of action. Further, because the Andersons were not
given a “full” “written warranty” under the MMWA, they are not entitled to the
remedies provided under § 2304(a)(4). The Court will thus dismiss this claim. To the
extent that the Andersons also attempt to rely on state statutes, or allege some sort of
failure of an essential purpose, that claim is not clearly—much less plausibly—pleaded
in their amended complaint.
(continued...)
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The Court next addresses whether the flyer or any of Cook’s oral statements
qualify as express warranties under state law.
2. Breach of an Express Warranty
Under Minnesota law, “[e]xpress warranties by the seller are created as follows:
(a)
Any affirmation of fact or promise made by the seller
to the buyer which relates to the goods and becomes
part of the basis of the bargain creates an express
warranty that the goods shall conform to the
affirmation or promise.
(b)
Any description of the goods which is made part of
the basis of the bargain creates an express warranty
that the goods shall conform to the description.
(c)
Any sample or model which is made part of the basis
of the bargain creates an express warranty that the
whole of the goods shall conform to the sample or
model.”
Minn. Stat. § 336.2‐313(1)(a)‐(c).
5
(...continued)
Finally, the Court notes that because this is the only count alleged against
defendant E Ship One (which has yet to make an appearance in this case)—and because
it is clear on the face of the amended complaint that E Ship One provided the
Andersons with no warranty whatsoever—the Court will also dismiss this claim against
E Ship One. See Christiansen v. W. Branch Cmty. Sch. Dist., 674 F.3d 927, 938 (8th Cir.
2012) (“[E]ven where a district court exercises its power to sua sponte dismiss a claim
(without any pending motion to dismiss), the court’s failure to give the plaintiff notice
and an opportunity to respond before doing so is not reversible error if ‘it is patently
obvious the plaintiff could not prevail based on the facts alleged in the complaint.’”
(citation omitted)).
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Importantly, “an affirmation merely of the value of the goods or a statement
purporting to be merely the seller’s opinion or commendation of the goods does not
create a warranty.” Minn. Stat. § 336.2‐313(2). Instead, courts deem general or vague
statements about a product’s value to be “puffery” that provides no legal rights to
buyers—who, courts say, should know better than to rely on puffery. See, e.g., In re
Scotts EZ Seed Litig., 2013 WL 2303727, at *7 (finding various statements were puffery
because they were “generalized or vague” and “‘should not have been relied upon as an
inducement to purchase’” (citations omitted)).6 With these principles in mind, the
Court will first examine the flyer, and then examine Cook’s oral statements.
a. The Flyer
As noted, the one‐page promotional flyer makes two basic statements:
6
Minnesota state courts have made clear that, “[b]ecause the UCC is a uniform
law,” Minnesota’s UCC provisions are to be interpreted “in light of the interpretations
of other states that have adopted [the UCC].” Sorchaga v. Ride Auto, LLC, 893 N.W.2d
360, 374 (Minn. Ct. App. 2017) (citations omitted). Indeed, Minnesota state courts “‘give
great weight to other states’ interpretations of a uniform law.’” NHF Hog Mktg. v.
Pork‐Martin, LLP, 811 N.W.2d 116, 117 (Minn. Ct. App. 2012) (citation omitted).
Accordingly, the Court will consider other jurisdictions’ decisions interpreting and
applying the UCC.
Further, because there is a “common theme that seems to run through cases
considering puffery in a variety of contexts”—namely, “that consumer reliance will be
induced by specific rather than general assertions”—the Court will also consider
decisions that address the issue of “puffery” in various other contexts (such as cases
alleging fraud and false advertising). Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv.
Inc., 911 F.2d 242, 246 (9th Cir. 1990).
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First, the flyer asserts that Fibertec “is committed to manufacturing the most
advanced window systems ‘in the world’ at an affordable price.” ECF No. 22‐1. This
statement is obvious puffery. See, e.g., Gricco v. Carver Boat Corp., LLC, No. Civ. JFM–04‐
1854, 2005 WL 3448038, at *3 (D. Md. Dec. 15, 2005) (holding that an advertisement
stating that “Carver Yachts constructs the most advanced leisure vessels in the
industry” was puffery and not an express warranty); Atari Corp. v. 3DO Co., No. C 94‐
20298 RMW (EAI), 1994 WL 723601, at *1‐3 (N.D. Cal. May 16, 1994) (holding that the
slogan “the most advanced home gaming system in the universe” was puffery).
Second, the flyer advertises a “Lifetime Warranty” and states that “[e]very
window” that Fibertec produces “is individually inspected before shipping. After all, it
must last a lifetime!” ECF No. 22‐1.
As to the promise that every window is inspected before shipping: This promise
may qualify as an express warranty, see Minn. Stat. § 336.2‐313(1)(a), but the warranty
does the Andersons no good. The Andersons have not alleged that the windows were
not inspected, nor have they alleged that—had the windows been inspected as
promised—the problem with their windows would have been noticed.
As to the promise of a “Lifetime Warranty”: This promise may also qualify as an
express warranty, see Minn. Stat. § 336.2‐313(1)(a)‐(b), but any such warranty would be
limited to the one and only thing that is promised: that the windows come with a
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lifetime warranty. As discussed above, the flyer makes no promise about either the
duration or the terms of the “Lifetime Warranty” to which it refers. Here, the windows
did come with a lifetime warranty—the Limited Lifetime Warranty—and Fibertec has
not been accused of breaching that warranty. Thus, to the extent that the promise of a
“Lifetime Warranty” created an express warranty, the express warranty was not
breached.
Finally, as to the statement that windows “must last a lifetime”: In the context of
this flyer, that statement was puffery, not an express warranty. It provides no legal
rights to the Andersons. See Royal Bus. Machs., Inc. v. Lorraine Corp., 633 F.2d 34, 42 (7th
Cir. 1980) (“General statements to the effect that goods are ‘the best,’ or are ‘of good
quality,’ or will ‘last a lifetime’ and be ‘in perfect condition’ are generally regarded as
expressions of the seller’s opinion or the puffing of his wares and do not create an
express warranty.” (cleaned up)); see also Gricco, 2005 WL 3448038, at *2‐3 (holding that
an advertisement claiming that a yacht was “[c]rafted to last a lifetime” was puffery and
not an express warranty); Performance Motors, Inc. v. Allen, 186 S.E.2d 161, 166 (N.C.
1972) (finding statement that a “‘trailer was supposed to last a lifetime and be in perfect
condition’” was puffery and not an express warranty).
‐20‐
b. Cook’s Oral Statements
Cook told the Andersons that “test results” show that Fibertec windows “have
the ability to take in radiant solar heat in the winter while blocking the UV rays which
cause[] fading of fabrics, flooring, and rugs inside the Home.” ECF No. 22 at ¶ 24.
Promising that Fibertec windows “take in radiant solar heat” and “block[]” UV rays
could create an express warranty. See Minn. Stat. § 336.2‐313(1)(a)‐(b). But the
Andersons do not allege that any such warranty has been breached. Instead, the
Andersons allege that defective seals in their windows are causing the windows to leak
cold air and appear “cloudy or dirty.” ECF No. 22 at ¶¶ 40, 81.7
7
The Court notes that an additional problem with this express‐warranty claim is
that, because Cook’s statement did not explicitly extend to future performance, any
such claim is likely to be barred by the statute of limitations. See Minn. Stat. § 336.2‐
725(1)‐(2).
The Andersons seemed to argue at the hearing (without citation to any authority)
that if the Court found that they were provided with any express warranty relating to
their windows, then they have a “full warranty” that covers any potential problem with
those windows. The Andersons’ argument is unsupported by law or logic. If a seller
expressly warrants only that a window will block UV rays, that seller has not also
expressly warranted that the window is shatterproof and that the window will not leak
and that the window will not become cloudy. Warranties are contracts, after all; an
express warranty extends only as far as its terms.
‐21‐
Cook’s remaining statements were clearly puffery.8 Those statements fall into
two categories:
First, Cook made general statements about Fibertec being a good company and
Fibertec windows being a good product. For example, the Andersons allege that Cook
gave them “glowing reports” regarding “the integrity of Fibertec, as a company and as
to the quality of their product,” and “assured [them] that Fibertec had been a fantastic
company to work with.” ECF No. 22 at ¶ 21. Cook also added “that Fibertec had an
excellent reputation when it came to replacement of broken or failed sealed glass units
even replacing a unit or two at no charge if they were accidently [sic] broken during
installation.” Id. at ¶ 27. In short, Cook gave the Andersons “[his] word on the
excellence of the windows and the company Fibertec” and caused the Andersons to
believe that they “were purchasing top quality windows from the best company,
Fibertec.” Id. at ¶¶ 35‐36. All of this was classic puffery. See, e.g., Royal Bus. Machs.,
Inc., 633 F.2d at 41‐42 (finding statements that a product is of “high quality” and has
“very low” repair frequency were puffery and not express warranties); Oestreicher v.
8
The Andersons make a new allegation in their brief: that Cook told them the
windows came with a warranty that “covered everything for 20 years.” ECF No. 50
at 2. The Andersons did not make this allegation in their amended complaint, and, if
the allegation is true, it is difficult to understand how they could have omitted it, given
that they were meticulous in recounting the numerous statements allegedly made by
the defendants. Moreover, the Andersons have not moved to amend their (already)
amended complaint as required by Local Rule 15.1. The Court thus does not address
this new, unpleaded allegation.
‐22‐
Alienware Corp., 544 F. Supp. 2d 964, 973 (N.D. Cal. 2008) (finding statements about a
product’s “superb, uncompromising quality” were puffery); Gricco, 2005 WL 3448038,
at *2‐3 (finding various statements in an advertisement were puffery and not express
warranties as they merely reflected general opinions of the high quality of a particular
brand of yachts).
Second, Cook made some statements about particular features of Fibertec
windows. But these statements were also puffery. In re Scotts EZ Seed Litigation is
instructive. In that case, the court found general statements such as “WaterSmart,”
“Drought tolerant,” “Grows Anywhere! Guaranteed!,” “Makes the Most Of Every
Drop,” and “Grows in Tough Conditions! Guaranteed!” to be too general or vague to
create express warranties. In re Scotts EZ Seed Litig., 2013 WL 2303727, at *7. The court
contrasted these statements with more specific statements, such as “EZ Seed grows
grass ‘50% thicker with half the water’ compared to ‘ordinary seed’” and, “EZ Seed is
‘developed to thrive in virtually every condition—harsh sun, dense shade, and even
spreads to repair wear and tear.’” Id. Those statements could—in some instances—be
express warranties, the court explained, as they “promise that EZ Seed will perform in
specific, measurable ways; namely, that it grows thicker grass with less water than
normal grass seed, and is versatile enough to grow in both sunny and shady areas.” Id.
‐23‐
Here, “Cook insisted on the great benefits of triple pane glass rather than . . .
double pane . . . and instructed [the Andersons] that this was the type of windows they
needed to meet their needs.” ECF No. 22 at ¶ 25. He also “insisted” that “the
‘e coatings’ that Fibertec had on [its] window[s]” would “prolong the life and quality of
the windows and give great energy effeciency [sic].” Id. at ¶ 26. Finally, and most
relevantly, Cook told the Andersons that Fibertec’s fiberglass frames were of “high
value and quality” and that the windows had an “amazing seal and low air infiltration
qualities.” Id. at ¶ 22.
But statements that certain features of a window have “great benefits,” or
“prolong” the life and quality of the window, or provide “great” energy efficiency, or
are of “high” value and quality, or are “amazing,” are puffery. These are general
statements about the quality of the goods—statements that are not measurable,
verifiable, or refutable. Thus, Cook’s statements did not provide the Andersons with
any relevant express warranty.9
In short, the Andersons were not provided with any (relevant) express warranty,
save for Fibertec’s Limited Lifetime Warranty. The Andersons do not allege that
9
The Andersons also argue that the promotional flyer and Cook’s statements,
taken together, constitute an express warranty. They don’t. The relevant statements that
Cook made, and the relevant parts of the promotional flyer, are all general, vague
statements that amount to puffery. Combining two small piles of puffery into one large
pile of puffery does not somehow turn puffery into an express warranty.
‐24‐
Fibertec has breached its Limited Lifetime Warranty. The Court therefore dismisses all
of the Andersons’ express‐warranty claims.
3. Breach of Implied Warranties
The Andersons also claim that defendants breached two implied warranties. See
ECF No. 22 at ¶¶ 135‐52. Implied warranties are “imposed by [state] law for the
protection of the buyer and do[] not depend upon the affirmative intention of the
parties.” Dougall v. Brown Bay Boat Works & Sales, Inc., 178 N.W.2d 217, 222 (Minn.
1970). In some instances, sellers can disclaim implied warranties or limit the remedies
available for their breach. See Minn. Stat. § 336.2‐316(2)‐(4); Minn. Stat. § 336.2‐719; 15
U.S.C. § 2308; 15 U.S.C. § 2304(a)(2)‐(3). Fibertec argues that its Limited Lifetime
Warranty limits the remedies available to the Andersons for any breach of any implied
warranty.
The Andersons disagree. They contend that the limitations that the Limited
Lifetime Warranty imposes on the remedies available for breach of implied warranties
cannot be enforced against them because they were not given notice of those limitations
at the time of purchase.10 The Andersons may be correct; consumers are generally
10
At the hearing, the Andersons also argued that, although they have a right to
the express remedies provided under the Limited Lifetime Warranty, they are not
bound by the express limitations on those express remedies. The Andersons are
incorrect. The remedies and the limitations on those remedies are part of the same
contract. The fact that the Andersons were not given a copy of that contract at the time
(continued...)
‐25‐
protected by implied warranties unless those warranties are properly disclaimed or
limited, and since the Andersons were not given a copy of the Limited Lifetime
Warranty at the time of purchase, the remedies may not have been properly limited. It
does not matter, however, because any implied‐warranty claim that the Andersons had
is now barred by the statute of limitations. See Minn. Stat. § 336.2‐725.
In Minnesota, implied‐warranty claims carry a four‐year statute of limitations.
See Minn. Stat. § 336.2‐725. The four‐year period begins to run “when the breach occurs,
regardless of the aggrieved party’s lack of knowledge of the breach.” See Minn. Stat.
§ 336.2‐725(2). A “breach” almost always “occurs when tender of delivery is made,”
with the only exception being if the “warranty explicitly extends to future
performance.” Id. When “a warranty explicitly extends to future performance,” the
statute of limitations begins to run when the breach is discovered. Id. But “an implied
warranty by its very nature cannot explicitly extend to future performance.” Nelson v.
Int’l Harvester Corp., 394 N.W.2d 578, 582 (Minn. Ct. App. 1986) (citations omitted); see
also Marvin Lumber & Cedar Co., 223 F.3d at 879 (same). Thus, the statute of limitations
on the Andersons’ implied‐warranty claims began to run on the date of delivery.
10
(...continued)
of purchase may mean that the entire contract is without legal effect, but it does not
mean that the Andersons can rewrite the contract—leaving in the parts they like (such
as the remedies), but taking out the parts they do not like (such as the limitations on
those remedies).
‐26‐
The Fibertec windows were delivered to the Andersons in April 2011. ECF
No. 22 at ¶ 39. The Andersons filed this lawsuit more than seven years later—in
June 2018. See ECF No. 1. Hence, the Andersons’ implied‐warranty claims are clearly
barred by the four‐year statute of limitations.11
11
The Andersons argue that Above & Beyond and Cook “did not plead the
statute of limitations as an affirmative defense in this case.” ECF No. 50 at 22. The
Andersons are wrong. See ECF No. 10 at ¶ 189 (pleading the statute‐of‐limitations
defense in response to the Andersons’ complaint); ECF No. 29 at ¶ 189 (pleading the
statute‐of‐limitations defense in response to the Andersons’ amended complaint).
It is true that Fibertec did not plead the statute of limitations as a defense. But
Fibertec asserted the defense at the hearing. Because the Andersons had notice of the
defense based on the pleadings of Above & Beyond and Cook—and because the
implied‐warranty claims that the Andersons assert against Fibertec are identical to the
implied‐warranty claims that the Andersons assert against Above & Beyond and
Cook—the Court dismisses all implied‐warranty claims against all defendants. See, e.g.,
Brown v. Univ. of Ky. Comprehensive Assessment & Training Servs., Civ. A. No. 12‐CV‐123‐
KSF, 2013 WL 990423, at *8 (E.D. Ky. Mar. 13, 2013) (“[D]istrict courts have applied the
statute of limitations to a plaintiff’s claims where one defendant, or set of defendants,
had affirmatively raised the defense but other defendants failed to do so.” (citations
omitted)).
For the Court to rule otherwise would waste the resources of the parties and the
Court. Fibertec would move for permission to amend its answer to add a statute‐of‐
limitations defense, and its motion would be granted (because this case is in its infancy
and the defense is obviously not futile). Fibertec would then move for judgment on the
pleadings, and its motion would be granted. There is no reason to require the parties to
jump through all of those hoops, especially because there is no reason to believe that
discovery or further motions practice might change the Court’s conclusion that the
Andersons’ implied‐warranty claims are barred by the statute of limitations.
‐27‐
C. Fraud Claims
The Andersons also bring various fraud claims against various defendants.
Specifically, the Andersons contend that various representations (or omissions) by
various defendants amounted to (1) violations of the Minnesota Consumer Fraud Act;
(2) violations of the Minnesota Deceptive Trade Practices Act; and (3) common‐law
fraud.
1. Minnesota Consumer Fraud Act
The Minnesota Consumer Fraud Act (“MCFA”) prohibits the use “of any fraud,
false pretense, false promise, misrepresentation, misleading statement or deceptive
practice, with the intent that others rely thereon in connection with the sale of any
merchandise . . . .” Minn. Stat. § 325F.69, subd. 1. Although the Minnesota Attorney
General has primary responsibility for enforcing the MCFA, see Minn. Stat. § 8.31,
subd. 1, private citizens may—in some instances—file lawsuits to recover damages for
violations of the MCFA under the “private attorney general statute,” Minn. Stat. § 8.31,
subd. 3a. But to recover under the private attorney general statute, plaintiffs must
demonstrate that their action “benefits the public.” Ly v. Nystrom, 615 N.W.2d 302, 314
(Minn. 2000).
At the hearing, the Andersons argued that defendants violated the MCFA by
distributing the one‐page promotional flyer at the Minneapolis Home and Garden
‐28‐
Show12—a flyer that they claim materially misrepresented the quality, duration, or
terms of the warranty. The Andersons contend that their claim “benefits the public”
because the one‐page flyer must have been handed out to others attending the home
show. Putting aside the fact that none of this was pleaded in the Andersons’ amended
complaint—which “is devoid of any allegations that the complaint was brought for the
‘public benefit’ or how their action benefits the public,” Baker v. Best Buy Stores, LP, 812
N.W.2d 177, 183 (Minn. Ct. App. 2012)—the Andersons’ argument is meritless, as there
is nothing on the face of the one‐page flyer that is fraudulent, deceptive, or misleading.
The flyer simply states that Fibertec windows come with a “Lifetime Warranty”
and invites prospective customers to contact Fibertec “[f]or more information” about
that warranty. The flyer also informs prospective customers of various ways that they
can contact Fibertec, including through an email address, a website, a toll‐free phone
number, and a physical mailing address. ECF No. 22‐1.
The Andersons contend that the words “Lifetime Warranty” misrepresent the
quality, duration, or terms of the warranty. But as this Court has already explained, the
phrase “Lifetime Warranty”—standing alone—communicates almost nothing about the
quality, duration, or terms of the warranty. Countless products carry “lifetime”
12
The Andersons’ amended complaint and brief appear to make additional
arguments about how defendants may have violated the MCFA. At the hearing,
though, the Andersons made clear that their MCFA claim is based entirely on the flyer
that they were given at the Home and Garden Show.
‐29‐
warranties, and yet it seems that no two “lifetime” warranties are the same. Instead,
“lifetime” warranties promise different (and sometimes very limited) remedies
triggered by different (and sometimes very limited) circumstances. Moreover,
“lifetime” warranties last different (and sometimes very limited) periods of time.
Here, the flyer represented only that Fibertec offered a “lifetime warranty” of
some kind. That representation was true, because Fibertec did offer a lifetime warranty
of some kind (specifically, the Limited Lifetime Warranty). Because the information
that the flyer provided was true, and because the flyer did not make any representation
about the quality, duration, or terms of the warranty, the flyer did not contain a
fraudulent misrepresentation.
It bears mention that, if the Andersons wanted to know anything about the
quality, duration, or terms of the “lifetime warranty” that would cover their windows,
all they had to do was ask. As noted, they had been invited to contact Fibertec for more
information about the warranty, and they had been given multiple ways to do so.
Instead of contacting Fibertec or asking for a copy of the warranty from Cook, the
Andersons instead invested almost $100,000 in windows without knowing anything
about the warranty that covered those windows, save for two words (“Lifetime
Warranty”) that appeared on a one‐page flyer that had been handed to them at a home
show. Understandably, the Andersons now have buyer’s remorse, but the MCFA
‐30‐
protects consumers from fraud, not them from their own lack of diligence. No one
defrauded the Andersons.
2. Minnesota Deceptive Trade Practices Act
The Andersons also allege that defendants violated the Minnesota Deceptive
Trade Practices Act (“MDTPA”) by misrepresenting the quality of Fibertec’s windows.
See ECF No. 22 at ¶¶ 172‐73; see also Minn. Stat. § 325D.44, subd. 1(5), 1(7). Unlike the
MCFA (which requires consumers to resort to the private‐attorney‐general statute to
bring a claim), the MDTPA itself creates a cause of action for consumers “likely to be
damaged by a deceptive trade practice of another.” Minn. Stat. § 325D.45, subd. 1. The
MDTPA therefore does not require that a lawsuit benefit the public. See Randall v.
R.S.C. Equip. Rental, No. 11‐CV‐2944 (PJS/LIB), 2012 WL 2060634, at *2 (D. Minn. June 7,
2012). But the MDTPA “provides only injunctive relief,” not monetary damages.
Simmons v. Modern Aero, Inc., 603 N.W.2d 336, 339 (Minn. Ct. App. 1999).
There are (at least) two problems with the Andersons’ MDTPA claim:
First, the Andersons do not seek injunctive relief; they seek only monetary
damages. ECF No. 22 at ¶ 174. As noted, monetary damages are not available under
the MDTPA. Simmons, 603 N.W.2d at 339.13
13
The Andersons argue that State by Humphrey v. Alpine Air Products, Inc., 490
N.W.2d 888 (Minn. Ct. App. 1992), holds that the MDTPA authorizes courts to award
monetary damages as “restitution.” Alpine Air Products says no such thing; in fact, it
(continued...)
‐31‐
Second, the Andersons have not plausibly pleaded that they or anyone else is
likely to suffer harm in the future—the type of harm that an injunction would prevent.
Relief is available under the MDTPA only to prevent future harm, not to compensate for
past harm, and the Andersons seek only to be compensated for past harm. See Minn.
Stat. § 325D.45, subd. 1 (creating a cause of action for consumers “likely to be damaged by
a deceptive trade practice of another” (emphasis added)); see also InCompass IT, Inc. v.
Dell, Inc., No. 11‐CV‐0629 (PJS/JJG), 2012 WL 383960, at *4 (D. Minn Feb. 6, 2012)
(explaining how the MDPTA requires plaintiffs to allege that they will suffer “harm in
the future” (citations omitted)).
For these reasons, the Andersons’ MDTPA claims are dismissed.
3. Common‐Law Fraud
Finally, the Andersons allege that defendants committed common‐law fraud. See
ECF No. 22 at ¶¶ 175‐82. “To establish common law fraud, the [Andersons] must
prove: (1) a false representation of a past or existing material fact susceptible of
knowledge; (2) made with knowledge of the falsity of the representation or made
(...continued)
says the opposite. In Alpine Air Products, the Minnesota Court of Appeals explained
that “there is no express authority for the attorney general’s action for restitution.”
Alpine Air Prods., Inc., 490 N.W.2d at 896 n.4. In other words, the court said that the
MDTPA did not authorize the recovery of restitution. Because the MDTPA did not
authorize the recovery of restitution, the court said that it was relying on “the doctrine
of parens patriae” to uphold the trial court’s award of restitution. Id.
‐32‐
without knowing whether it was true or false; (3) with the intention to induce action in
reliance thereon; (4) that the representation caused action in reliance thereon; and
(5) pecuniary damages as a result of the reliance.” U.S. Bank N.A. v. Cold Spring Granite
Co., 802 N.W.2d 363, 373 (Minn. 2011) (citation omitted). “Fraud may also be
established by concealment of the truth.” Id. (citation omitted).
To properly plead fraud, the Andersons must satisfy the requirements of Fed. R.
Civ. P. 9(b). Rule 9(b) requires a party alleging fraud to “state with particularity the
circumstances constituting fraud or mistake.” If “‘the facts constituting the fraud are
peculiarly within [defendants’] knowledge,’” plaintiffs may satisfy Rule 9(b) by
pleading on the basis of information and belief. United States ex rel. Strubbe v. Crawford
Cty. Mem’l Hosp., 915 F.3d 1158, 1163 (8th Cir. 2019) (citation omitted). But the
allegations pleaded on information and belief must be “‘accompanied by a statement of
facts on which the belief is founded.’” Id. (citation omitted).
The Andersons appear to allege that defendants committed fraud in two ways:
First, the Andersons allege that defendants committed fraud by knowingly
withholding information about the defective nature of the windows. ECF No. 22
at ¶¶ 64‐65, 67, 177; ECF No. 50 at 18‐20. But the only thing that the Andersons rely on
to support this claim is the fact that—over five‐and‐a‐half years after the Andersons
purchased their windows, when they started to complain about the defects—defendants
‐33‐
informed them that other customers were having the same problem. See ECF No. 22
at ¶¶ 48, 54‐55. The Andersons plead no facts suggesting that defendants knew of the
defective nature of the windows either (1) at the time that the Andersons purchased the
windows or (2) within two years after the windows were delivered (after which the
terms of the warranty became less favorable to the Andersons).
Indeed, the Andersons themselves did not notice any problems with their
windows until more than three‐and‐a‐half years after the windows were installed, and
those problems initially did not lead them to believe that the windows were defective.
Only after multiple rounds of professional cleaning did the Andersons realize that the
windows were defective—and this realization did not occur until more than five years
after the windows were installed. In short, the Andersons have not pleaded facts that
would plausibly suggest that defendants had knowledge of the windows’ defects at the
time that they sold the windows to the Andersons or within two years thereafter.
Second, the Andersons allege that the flyer that Cook provided to them at the
Home and Garden Show fraudulently advertised a “Lifetime Warranty.” See ECF
No. 22 at ¶¶ 179‐80; ECF No. 50 at 17‐18. At the hearing, the Andersons elaborated that
the flyer was fraudulent because it did not disclose the precise terms of the “Lifetime
Warranty” that it advertised. But, as the Court has explained several times, there is
nothing fraudulent about the flyer. The flyer does nothing more than assert that
‐34‐
Fibertec windows come with a “Lifetime Warranty” of some sort, and Fibertec windows
do come with a “Lifetime Warranty” of some sort.
The Andersons seemed to contend, however, that when the flyer is combined
with Cook’s oral statements, the flyer becomes fraudulent. But Cook did not make any
oral statements regarding the warranty (or at least no such statements are alleged in the
amended complaint); instead, Cook is alleged to have praised Fibertec and its windows.
See ECF No. 22 at ¶¶ 21‐27.14 Accordingly, the Court dismisses the Andersons’ claims
for common‐law fraud.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
1.
Defendants’ motions for judgment on the pleadings [ECF Nos. 39 and 44]
are GRANTED IN PART as follows:
14
Once again, the Andersons try to defeat defendants’ motions by making factual
allegations in their brief that appear nowhere in their amended complaint. Specifically,
the Andersons make new allegations about statements that Cook is alleged to have
made about the warranty. See ECF No. 50 at 2‐3. Once again, if these allegations are
true, it is very difficult to understand how they could have been omitted from the
amended complaint. In any event, the Andersons have not moved to amend their
amended complaint as required by Local Rule 15.1, and in ruling on defendants’
motions for judgment on the pleadings, the Court will not address factual assertions
that do not appear in any pleading.
‐35‐
a.
Counts I, III, IV (breach of implied warranty of fitness for particular
purpose), V, and VI are DISMISSED WITH PREJUDICE.
b.
Counts II, IV (rejection of delivery right to full replacement), and
VII are DISMISSED WITHOUT PREJUDICE.
2.
Because all claims of plaintiffs have been dismissed, all cross‐claims are
DISMISSED WITHOUT PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: November 4, 2019
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
‐36‐
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